Tutoveanu v Velez

[2025] NSWSC 594

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tutoveanu v Velez (No 2) [2025] NSWSC 594

Hearing dates:

On the papers

Date of orders:

10 June 2025

Decision date:

10 June 2025

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Notice of motion dismissed

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity, illegality or against good faith — Limited application of rule after full hearing on the merits — Not available where merits of decision challenged such that appeal is the proper course — UCPR Pt 36 r 36.15(1)

Cases Cited:

Tutoveanu v Velez [2025] NSWSC 359

Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Others (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

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

New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Category:

Consequential orders

Parties:

Anton Tutoveanu (Plaintiff )
Luc Velez (First Defendant)
The Greens NSW (Second Defendant)

Representation:

Plaintiff (self-represented)

Counsel: P Santucci (First and Second Defendants)

Solicitors: Ripple Legal (First and Second Defendants)

File Number(s):

2025/134122

Publication restriction:

Nil

JUDGMENT

Summary

1. By its Judgment delivered on 10 April 2025 in these proceedings, the Court dismissed the summons filed by the plaintiff (Mr Tutoveanu) and ordered him to pay the costs of the first defendant (Mr Velez) and the second defendant (The Greens NSW): Tutoveanu v Velez [2025] NSWSC 359. These reasons should be read, and assume familiarity, with the Judgment.

2. By a notice of motion dated 10 April 2025, Mr Tutoveanu seeks these orders:

1. Set aside judgment and orders entered on 10 April 2025 pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW); amd

2. Leave for plaintiff to give evidence under oath of his medical condition.

3. The Court has dealt with the motion on the papers and without the need to call on the defendants. For the reasons set out below, the motion will be dismissed. Those reasons may be summarised as being that Mr Tutoveanu’s evidence and submissions disclose no basis to invoke the narrowly confined grounds set out in r 36.15(1). The matters he raises all go to the correctness of the Judgment itself, other than one issue which is an irrelevant matter of fact (assuming it to be correct). As I explained to Mr Tutoveanu, the correctness of the Judgment is to be challenged, if he wishes, by an appeal to the Court of Appeal.

4. Mr Tutoveanu appeared for himself and prepared his own submissions. At the first return date of the motion, the defendants were represented by Mr P Santucci of Counsel.

Procedural history

5. The Judgment was delivered on 10 April 2025. It dismissed Mr Tutoveanu’s challenge to the Greens NSW not having accepted his incomplete application to be considered for preselection as that party’s candidate for the Federal Electorate of Sydney in the (then impending) May 2025 federal election. Mr Tutoveanu appeared to have the motion with him in court, apparently prepared in advance of the outcome.

6. There was a delay in filing the motion. Some days later Mr Tutoveanu appeared in my court unannounced and, to bring matters to a head, I directed that the motion should be filed and made returnable before me on 23 May 2025.

7. At the return date on 23 May 2025:

1. Mr Tutoveanu appeared for himself and Mr Santucci appeared for the defendants;

2. Mr Tutoveanu provided the Court and the defendants with a court book in relation to his motion which included an affidavit made on 3 May 2025, but did not contain the written submissions foreshadowed in the index to the court book;

3. Mr Tutoveanu consented to an order proposed by the defendants that he file and serve his submissions on or before 30 May 2025. In light of what has since occurred, I record that I made it clear to Mr Tutoveanu that he could have had longer to prepare his written submissions, but he steadfastly adhered to that date;

4. The Court noted Mr Santucci’s submissions on behalf of the defendants that there was no basis on which the motion could succeed and that, insofar as Mr Tutoveanu wished to complain about the Judgment, the proper course was for him to appeal to the Court of Appeal; and

5. I informed the parties, and they agreed, that in the interests of saving costs, I would not make directions for the defendants to serve and file submissions unless and until, after reviewing Mr Tutoveanu’s submissions, I came to the view that they raised a sufficient case for an order under r 36.15(1) that a formal response on behalf of the defendants was required.

8. Notwithstanding his confidence as to when he could provide his written submissions, Mr Tutoveanu sent this email to my Associate on 2 June 2025:

“There is some delay with the written submissions that was directed to be provided on or before 30 May 2025.

That is largely due to the self-represented plaintiff being overwhelmed with the amount of incidentals that have come out of the initial case and re-visiting details of a psychiatric condition that were disclosed in the complainant's second affidavit.

If it assists I attached some draft annotations of the judgment published on 10 April 2025.

Particular inconsistencies found were:

[11] The nomination documents were sent on 22 Oct not 16.

[27] In-applicability of the laches defense when a statutory wrongdoing is alleged.

[34] Misapprehension of the jurisdiction of the Disability Discrimination Act 1992 (Cth).

[38] Misapprehension on the hierarchy of applicable Greens governing instruments and specific provisions regarding discrimination.

[40] The admissibility of medical evidence and procedural fairness.

[45] Adjustment of timeline in the pre-selection process is implied from the governing documents and inferred from the actual events that took place.

[49] It appears the only notable difference between the two announced nominees was their age.” (Emphasis in original.)

[60] The Act No. 21/1991 on Romanian Citizenship is irrelevant to the argument as the plaintiff's foreign citizenship cannot be withdrawn since it was acquired by birth.”

9. The “draft annotations” consisted of a copy of the Judgment with sections highlighted in red, green or yellow, but without an explanation of what the particular colour signified.

10. My Associate responded that day:

“His Honour enquires whether the annotations in the judgment you have made are the grounds upon which you wish to have his judgment set aside. Do you intend to provide any further written submission and, if so, how long do you require to do so? If you do not intend to provide written submission his Honour will treat the draft annotations upon which you move [sic], please let me have a reply by 5:00pm today.”

11. Later on the same day Mr Tutoveanu replied to my Associate including, “I’ll provide an update on the written submissions (ie formal legal proof) before tomorrow morning 8am. The present urgent concern the plaintiff has is leaving an apparently err’d [sic] judgment on the public register.” (Emphasis in original.)

12. On 3 June 2025, Mr Tutoveanu sent this email to my Associate:

“I have appearance for another matter today.”

13. His email attached what were described as “Plaintiff Submissions (Draft Outline)”. My Associate immediately responded:

“His Honour notes that the document attached to your email is described as draft submissions. On the last occasion you were adamant you only required 7 days to prepare submissions, his Honour has extended the time for the provision of final submissions to 5:00pm tomorrow. If nothing further is received from you by that time his Honour will consider the matter by reference to the documents filed.”

14. On 3 June 2025, Mr Tutoveanu filed a “court book” in the registry with documents dated December 2024, including a statement of claim headed as being in the “Green Court of New South Wales, Social Equity and Economic Justice Division, Human Rights List” and which appeared to be a version of his claim that I determined in these proceedings. The material in the “court book” has no status and I have not taken it into consideration.

15. Late on 4 June 2025, Mr Tutoveanu emailed a document of that date entitled “Plaintiff Submissions” (Final Submissions). My Associate immediately emailed Mr Tutoveanu:

“I confirm receipt and enquire if the Court should ignore earlier emails. Are the submissions attached to this email what you wish the court to consider. If not, what do you want his Honour to consider?”

16. Mr Tutoveanu replied promptly by return, including:

“The information in the previous emails have been incorporated in today’s written submissions.

Kunc [sic] may refer to the previous emails and attachments.

I confirm that the submissions dated 4^th June 2025 are the plaintiff’s relied on basis for a distant, future meeting of the court.”

17. I have read all of the different material provided by Mr Tutoveanu to which I have referred in the preceding paragraphs, but only to confirm what appears to be the case, namely that the Final Submission incorporate the substance of the earlier emails. Therefore, I have determined the motion by reference to the Final Submissions.

The Final Submissions

18. After an introduction and recitation of facts, the Final Submissions contain extracts from numerous Commonwealth and State pieces of legislation which, to varying extents, appear on their face relevant to issues in the proceedings. There is then an extensive exposition of authorities on the question of setting aside or varying judgments or how applications to reopen should be dealt with (including after delivery of judgment).

19. It is convenient then to set out in full Mr Tutoveanu’s submissions:

“SUBMISSIONS

Plaintiff

61   The legal principles for an application to set aside or vary a judgment are well understood and can be summarised into:

(a) Interests of justice.

(b) Public interest.

(c) Finality.

(d) Efficiency.

(e) Procedural fairness and prejudice.

(f) New and substantial evidence.

(g) Existence of errors:

(i) Misapprehension of fact or law.

(ii) Missed information.

(iii) Contradictions and falsehoods.

(h) Exceptional circumstances.

62 Irregularities found in Tutoveanu v Velez [2025] NSWSC 359 at [11],[27],[34],[38],[40],[45],[49],[60]:

(a)    The nomination forms were sent on 22 Oct not 16.

(b)    In-applicability of the laches defence when a statutory wrongdoing is alleged.

(c) Misapprehension of the jurisdiction of the Disability Discrimination Act 1992 (Cth).

(d)    Misapprehension on the hierarchy of applicable Greens governing instruments and specific provisions regarding discrimination.

(e)    The admissibility of medical evidence and procedural fairness.

(f)    Adjustment of timeline in the pre-selection process is implied from the governing documents and inferred from the actual events that took place.

(g)    It appears the only notable difference between the two announced nominees was their age.

(h)    The Act No. 21/1991 on Romanian Citizenship is irrelevant to the argument as the plaintiff's foreign citizenship cannot be withdrawn since it was acquired by birth.

CONSIDERATION

63    The plaintiff seeks to conduct a formal hearing of the past pre-selection, its relevant committees and campaign members, to formalise a determination on the past conduct of the pre-selection process with the intention of informing future political party pre-selections.

64    The plaintiff proposes a timetable with an estimated time and cost to conduct the proceedings.

(a)    Allocation of hearing for evidence in chief and cross-examinations.

Anton Tutoveanu

Date: 4th June 2025”

Legal principles

20. Division 4 of UCPR Part 36 is headed “Setting Aside and Variation of Judgments”. It contains rules 36.15 to 36.18. The scope and effect of those rules is, perhaps understandably, frequently misunderstood by litigants appearing without the benefit of legal assistance or legal training. It is therefore convenient at this point to set out the relevant legal principles.

21. While the rules in Division 4 must be applied according to their terms, that application is to be against the background of the fundamental principle of public policy in favour of upholding the finality of judgments. The Court’s essential constitutional duty is to quell the dispute presented by the parties. The parties are generally given one opportunity for that to be done by a contested hearing on the merits. A multiplicity of litigation is to be avoided. A party which has been given that one opportunity and is dissatisfied with the outcome has a right of appeal, either as of right or by leave depending on the nature of the decision. Subject only to the possible application of the inherent jurisdiction of the Court or another recognised basis at common law, a final judgment or order at first instance will only be set aside or varied if one of the narrow possibilities identified in Division 4 is able to be satisfied. The rules contained in Division 4 are not a “back door” means of advancing what should properly be an appeal on the merits.

22. Rule 36.15 provides:

36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

23. The proper application of that rule was considered by the Court of Appeal in its judgment in Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Others (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387:

“16 The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was "given, … entered or … made" irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below.

17 The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard.

…

44 The general rule is that final orders regularly made and formally entered can only be challenged on appeal or in proceedings to set aside the judgment for fraud.” (Emphasis added.)

24. I am bound by, and propose to apply those principles, with which I respectfully express my agreement.

25. Although specifically directed to r 36.16, these observations of the Court of Appeal in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 provide a salutary reminder that the rules in Division 4 must be applied in the light of the principle of finality of judgments:

“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].”

Consideration

26. The reference to “judgment” in r 36.15 does not mean the Court’s reasons, which again, somewhat confusingly, are referred to as a judgment. Those are the reasons why the Court is entering the judgment or making the order which is the subject of the rule. In this case, conformably with Perpetual, the “judgment or order of the court” which can be the subject of an application under r 36.15 is the orders that were made for the reasons set out at the conclusion of the Judgment, being:

“(1)   Summons dismissed.

(2)   The plaintiff pay the defendants’ costs as assessed in the gross sum of $11,000 inclusive of GST.”

27. Those orders were made and entered after a hearing on the merits at which the parties were represented (in Mr Tutoveanu’s case by himself) and fully heard. Rule 36.15 in those circumstances “can only have limited application” (see Perpetual in [23] above) and the question is whether those orders were “Given…. entered, or … made, irregularly, illegally or against good faith”.

28. In paragraph 62 of the Final Submissions (see [19] above), Mr Tutoveanu identifies “irregularities”. I have therefore assumed he submits that the various matters he has identified demonstrate that the orders referred to in [26] above were “entered, or … made” irregularly. Each paragraph of the Judgment identified by Mr Tutoveanu cross-references to his submission about it, such that the “irregularity” identified in paragraph [11] of the Judgment is amplified in the corresponding sub-paragraph of the Final Submissions (i.e. [11] and 62(a), [27] and 62(b) etc).

29. I have considered each of these “irregularities”. For the purposes of r 36.15 orders will have been made or entered “irregularly” if there has been a failure to comply with a requirement under the UCPR that had to be satisfied before judgment could be entered. In my respectful opinion, it is clear that none of the “irregularities” identified in the Final Submissions demonstrates that the entry or making of the Court’s orders at the end of the Judgment occurred irregularly in the requisite sense. No failure to comply with a procedural requirement under the UCPR is identified. The Court does not need to call upon the defendants to make submissions (beyond those they have already made – see [7(4)] above – and which the Court accepts having considered the Final Submissions) to be able to reach that conclusion.

30. The issue raised in sub-paragraph 62(a) of the Final Submissions is a factual matter of no apparent relevance assuming it to be correct. The issues in the balance of the sub-paragraphs appear to be legal submissions which go to the correctness of the Judgment and are therefore properly to be raised by an appeal. They do not impeach the regularity of the making or entry of the Court’s orders disposing of Mr Tutoveanu’s summons. Orders which may be the product of an incorrect legal analysis are not, by reason of that without more, irregularly made or entered for the purposes of r 36.15(1). That is even the case, for orders of a superior court of record such as this Court, if the order is affected by jurisdictional error: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26.

Conclusion

31. The motion will be dismissed. I will make directions for short submissions from the parties if the defendants seek their costs.

32. The Court’s orders are:

1. The plaintiff’s motion dated 10 April 2025 is dismissed;

2. If the defendants wish to apply for their costs of that motion they are to do so by serving and filing by email to the Associate to Kunc J on or before 13 June 2025 an outline of submissions in support not exceeding one page;

3. If the defendants file and serve submissions in accordance with Order 2, the plaintiff is to serve and file by email to the Associate to Kunc J on or before 20 June 2025 an outline of submissions in opposition not exceeding one page; and

4. Direct that any application for costs be dealt with on the papers.

**********

Amendments

11 June 2025 - Title corrected to include No 2 judgment

Decision last updated: 11 June 2025