Zepinic v Chateau Constructions (Aust) Ltd

[2014] NSWCA 27

Court of Appeal

New South Wales

Case Title:

Zepinic v Chateau Constructions (Aust) Ltd

Medium Neutral Citation:

[2014] NSWCA 27

Hearing Date(s):

18 February 2014

Decision Date:

18 February 2014

Before:

Basten JA; Gleeson JA; Leeming JA

Decision:

1. Dismiss the applicant's application to vacate the hearing date.
2. Dismiss the amended notice of motion filed 6 August 2013, seeking to review the judgment of McColl JA of 1 July 2013.
3. Order the applicant to pay the respondent's costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - review of decision of single Judge of Appeal - Supreme Court Act 1970 (NSW) s 46 - whether there was "order" or "judgment" - where any order did not affect final result - review incompetent

APPEAL - purported appeal from judgments and orders by notice of motion instead of summons for leave to appeal - failure to identify orders or judgments - failure to identify grounds of appeal

PROCEDURE - application to vacate - application lacking in merit - no exceptional circumstances - application dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rules 2005 (NSW), r 10.6(2)

Cases Cited:

Commonwealth v Bank of New South Wales [1950] AC 235
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Howard v National Bank of New Zealand Ltd [2002] FCA 1257; 121 FCR 366
Lewis v Condon; Condon v Lewis [2013] NSWCA 204
Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278

Category:

Principal judgment

Parties:

Dr Vito Zepinic (Applicant)
Chateau Constructions (Aust) Ltd (Respondent)

Representation

- Counsel:

Counsel:
No appearance for the applicant
B Ilkovski (Respondent)

- Solicitors:

Solicitors:
Toomey Pegg Lawyers (Respondent)

File Number(s):

2010/45208

Decision Under Appeal

- Court / Tribunal:

Court of Appeal

- Before:

McColl JA

- Date of Decision: 

01 July 2013

- Citation:

[2013] NSWCA 214

- Court File Number(s):

CA 2010/45208

JUDGMENT

1. JUDGMENT of the COURT delivered by LEEMING JA: The applicant calls himself "Dr Vito Zepinic", which is contentious (see Zepinic v Psychologists Registration Board of NSW [2010] NSWPST 6) but immaterial for present purposes. He is unrepresented.

2. The principal relief sought by the applicant's amended notice of motion filed 6 August 2013 is the setting aside of what is described as the "ex parte judgement by McColl JA" made on 1 July 2013. On that day, her Honour heard an application by the respondent (Chateau Constructions) pursuant to an amended notice of motion filed 17 June 2013. Her Honour gave reasons for concluding that personal service upon the applicant, which concededly had not been undertaken, was not necessary: Zepinic v Chateau Constructions (Australia) Ltd [2013] NSWCA 214. Those reasons record that her Honour was asked to make an order under r 10.6(2) of the Uniform Civil Procedure Rules 2005 (NSW), and on that day, her Honour's conclusion was formulated in an "order" in these terms:

   "Forwarding under cover of the letters referred to in Mr Loel's affidavit of the original notice of motion and the amended notice of motion to the Little Thames Walk address should be taken to constitute sufficient service for the purpose of the amended notice of motion."

3. Otherwise, her Honour reserved her decision.

4. Chateau Constructions' motion before McColl JA on 1 July 2013 sought an order that it be awarded interest on a costs order in its favour made in this Court on 10 May 2010, when a summons seeking leave to appeal from a decision of the District Court made on 20 November 2009 was dismissed. McColl JA dismissed Chateau Constructions' motion on 18 July 2013 as incompetent; the reasons for that conclusion are not presently relevant. Her Honour recorded that there was no appearance by the applicant, and for that reason made no order for costs: see at [89].

5. Paragraphs 1 and 3 of the applicant's notice of motion seek these orders:

   "Order to set aside ex parte judgement by McColl JA made on 1 July 2013 pursuant to the r11 & 11A, r35.9.100 and r10.2(1)(2) of UCPR 2005, the CL210.175 & CL210.180 of the NSW Supreme Court Practice and Procedure, and Articles 5 & 6 of 14. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded on 15 November 1965.
   ...

   Order to dismiss the "Notice of Motion" filed by the Respondent on 29 May 2013 and "Amended Notice of Motion" filed 17 June 2013 pursuant to the r11 & 11A, r35.9.100 and r10.2(1)(2) of UCPR 2005, the CL210.175 & CL210.180 of the NSW Supreme Court Practice and Procedure, and Articles 5 & 6 of 14. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded on 15 November 1965."

6. Paragraphs 3 and 5 of the applicant's affidavit filed in support of his motion state that he left Australia on 10 March 2009, and has resided in the United Kingdom ever since, leaving behind no representative for service. Paragraphs 8 and 9 state that he had never been served with Chateau Constructions' notice of motion which McColl JA dismissed on 18 July 2013.

7. Paragraphs 1 and 3 of the applicant's notice of motion accordingly are to be addressed, in substance, as an application to review her Honour's decision on 1 July 2013, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW). It is plain that the applicant contends that her Honour should have found that he had not been served, and for that reason Chateau Constructions' motion should have been dismissed.

8. That challenge is misconceived. (It is out of time, but that is the least of its difficulties.) First, there can be no review under s 46(4) unless there is an order or judgment. Just as appeals do not lie from reasons, so too review under s 46(4) requires an "order" or "judgment" which is sought to be varied or discharged. It may be doubted whether, although an "order" was made and entered into the Court's records on 1 July 2013, it was sufficient to engage s 46(4). Although her Honour was requested to make, and made, an order pursuant to UCPR r 10.6(2), that rule merely provides that service in accordance with an agreement, acknowledgement or undertaking is taken to constitute sufficient service. It thereby reflects a formal recognition of the position at common law: see Howard v National Bank of New Zealand Ltd [2002] FCA 1257; 121 FCR 366 at [5]-[6].

9. But either r 10.6(2) applies or it does not; it is difficult to see how the "order" made by the Court on 1 July 2013 alters the position. By way of contrast, it is plain that an order for substituted service, or an order for dispensing with the need for compliance with the rules, would be orders which could be reviewed pursuant to s 46(4).

10. It is not necessary to take that point any further, because in any event, nothing her Honour determined as to service had or has any continuing impact upon the dismissal of Chateau Constructions' motion. Her Honour dismissed Chateau Constructions' motion on its merits, because her Honour regarded it as incompetent. Even if there was anything in the applicant's complaint that service was deficient (something as to which we do not express a view), there is no order or judgment of the Court which the applicant is entitled to discharge or vary. Chateau Constructions' motion has already been dismissed.

11. Appeals only lie from orders which are adverse to the appellant: Commonwealth v Bank of New South Wales [1950] AC 235 at 294; Lewis v Condon; Condon v Lewis [2013] NSWCA 204 at [117]. The same applies in an application for review under s 46(4). That section does not permit a person who is not affected by a judgment or order to apply for its review. The question of service was not something which affected the final result: see Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [6] and [44]. Even if there was an order on 1 July to which s 46(4) applied, the fact that Chateau Constructions' motion was dismissed would prevent a review (just as it prevented an appeal in Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278).

12. Paragraphs 2, 4 and 5 of the applicant's notice of motion seek orders setting aside various other court orders. Paragraph 2 seeks orders setting aside the orders made by the District Court of NSW on 20 November 2009 and 12 April 2013. The former is the order which was the subject of the application for leave to appeal refused in this Court in 2010 mentioned above. The latter are orders made by the District Court on application by Chateau Constructions; neither the reasons for those orders, nor their precise content has been reproduced in the materials. Paragraphs 4 and 5 seek orders setting aside "the orders/judgments made by the NSW Supreme Court for proceedings commenced on 22 September 2009" (the time or nature of the orders are not specified), and "judgments and/or orders by the courts or authorities below the NSW Supreme Court, Court of Appeal since 11 March 2009" (once again, no specificity is given).

13. The basis for setting aside the orders mentioned in paragraphs 4 and 5 is a complaint based upon the failure to effect service in accordance with the Convention and rules governing service out of the jurisdiction. This appears from paragraph 14 of the applicant's affidavit:

    "Since 11 March 2009, the Respondent has on numerous occasions filed the documents with the different courts in NSW but had never served them to Vito Zepinic and/or Milla Zepinic pursuant to the r11 & 11A of UCPR 2005, CL210.175 of the NSW Supreme Court Practice and Procedure, and the 14. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters."

14. Paragraphs 2, 4 and 5 are also misconceived. First, they are challenges to orders made by courts other than the Court of Appeal, and require a summons seeking leave to appeal, not a notice of motion brought in the 2010 proceedings. Secondly, they are out of time (in some cases, very substantially out of time). Thirdly, leave to appeal from the order of the District Court made on 20 November 2009 was the subject of the decision of Tobias JA made on 10 May 2010 from which no review has been taken. Fourthly, it is necessary for any person wishing to invoke this Court's appellate jurisdiction to identify with precision the order or judgment sought to be set aside, and the grounds on which the challenge is based. To do so in the manner of these three paragraphs is prima facie an abuse of process.

15. On the hearing of this application Chateau Constructions propounded other ways in which there was said to be an abuse of process. It is not necessary for present purposes to address those other ways in which an abuse of process was said to have been made out.

16. The sixth order sought in the applicant's notice of motion is an order that the respondent pay to him "the costs and disbursements of £34,300.00". That is consequential upon the earlier paragraphs, and does not take the matter any further.

17. By emails to the Registrar of 12 and 14 February 2014, the applicant advised that he wished to vacate the hearing of his motion. The more recent email is in these terms:

    "Only reason why this was required is impossibility to travel out of the UK as I do not have any other than Australian passport submitted to the UK Home Office together with other original documents required. While visiting our Commission in London to certify affidavits which I sent to you, I asked any possibility for some temporary travel document that I can attend hearing day. However, such possibility does not exist.

    In the 'Notification to the court', I pleaded court to re-schedule next hearing date for end of March or early April 2014 (it was an error in my e-mail saying 'early July 2014').'"

18. That email did not respond substantively to the Registrar's invitation to the applicant to be heard by telephone, although he said he was otherwise ready to proceed.

19. Chateau Constructions opposed the application to vacate.

20. An important factor in considering the application to vacate a hearing date is the merit of the underlying application. An application apparently entirely lacking in merit will require exceptional circumstances to justify vacation of the hearing date, with the concomitant expense to the other party and disruption of the Court's business. For the reasons stated above, the motion filed 6 August 2013 is based on a fundamental misconception. There are no exceptional circumstances: the applicant seeks to run proceedings from the UK, apparently without the present ability to return to this country and without nominating an agent to appear at hearings. When asked by the Registrar if he wished to appear by telephone, he declined to respond substantively to the inquiry. In those circumstances, there is no proper basis to grant his application to vacate the hearing date.

21. The amended notice of motion filed 6 August 2013, seeking to review a judgment of McColl JA should be dismissed. The applicant must pay the respondent's costs of the motion.

22. One other thing should be said. The applicant's affidavit accuses Chateau Constructions of fraudulent conduct and "deliberately and knowingly perverting the course of justice and obstructing the administration of public justice". There is no basis in the material before this Court to support those statements.