Zepinic v Health Care Complaints Commission (No 2)

[2020] NSWCA 320

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320

Hearing dates:

On the papers

Date of orders:

10 December 2020

Decision date:

10 December 2020

Before:

Macfarlan JA;
McCallum JA

Decision:

Dismiss Dr Zepinic’s notice of motion filed on 22 July 2020, with costs.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court refusing leave to appeal – arguments advanced by applicant plainly groundless and either previously addressed by the Court or not advanced on the previous occasion when the opportunity to do so existed – public interest in the finality of litigation – no change in circumstances or other good reason to permit further leave application to be made

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

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

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

Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72

Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36

Category:

Procedural and other rulings

Parties:

Dr Vito Zepinic (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
Self-represented Applicant
Ms P Lowson (Respondent)

Solicitors:
Self-represented Applicant
Health Care Complaints Commission (Respondent)

File Number(s):

2020/43054

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 13

Date of Decision:

03 February 2020

Before:

N Adams J

File Number(s):

2018/385664

Judgment

1. THE COURT: On 15 July 2020 the Court delivered judgment in Zepinic v Health Care Complaints Commission [2020] NSWCA 146 dismissing Dr Zepinic’s application for leave to appeal against a decision of N Adams J of 3 February 2020, which in turn dismissed an appeal from the New South Wales Civil and Administrative Tribunal (Occupational Division) of 18 October 2018. In doing so the Court identified and addressed some seven different arguments Dr Zepinic put in support of his application.

2. By notice of motion filed on 22 July 2020, Dr Zepinic sought orders setting aside the judgment, granting him leave to appeal and allowing the appeal. The parties lodged written submissions pursuant to directions made by the Registrar.

3. Under the general law a superior court such as the Supreme Court of New South Wales has power to review, correct or alter its judgment at any time until the orders giving effect to it have been perfected by their entry in the records of the Court (Smith v NSW Bar Association (1992) 176 CLR 256 at 265; [1992] HCA 36). The power is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation and only if the Court is persuaded that there is “some matter calling for review” (ibid). A like power may now be exercised where, within 14 days after a judgment or order is entered, a motion has been filed seeking an order setting aside or varying the judgment (Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 36.16(3A)). As that occurred in the present case, the Court has power to make the orders sought by Dr Zepinic.

4. As this Court has recently emphasised, that power is to be “exercised with great caution” (Lawrence v Ciantar (No 2) [2020] NSWCA 186 at [7]). Furthermore, it is not to be exercised “for the purpose of re-agitating the arguments already considered by the Court or ‘to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases’” (ibid at [8] citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6). Furthermore, in Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 this Court stated, by reference to authority, that the power is only to be exercised “where the existing judgment or order is shown to be affected by some relevant irregularity, or by a misapprehension of law or fact, such as a failure to afford a party a proper opportunity to be heard, or that the court had misapprehended a party’s evidence or submissions” (at [7]).

5. None of those circumstances exists in the present case. The arguments that Dr Zepinic has advanced in support of his motion are plainly groundless ones that were previously addressed by the Court or ones that it was open to him to raise previously but which, for no good and proper reason that he has established, he did not do so. In effect, he seeks to re-argue his previous application without establishing any of the special circumstances that might persuade the Court to re-open its judgment notwithstanding the interest of the public in the finality of litigation. His application to set aside the judgment should accordingly be rejected.

6. The other orders sought by Dr Zepinic, granting leave to appeal and allowing the appeal for which leave would be granted, were presumably sought by him on the basis that they would be appropriate if the Court’s previous judgment were set aside. For reasons we have given, that circumstance has not arisen. If on the other hand Dr Zepinic intended by his notice of motion to seek a grant of leave to appeal irrespective of the setting aside of our previous judgment, his application should be refused as no change in circumstances or other good reason has been demonstrated for permitting him to re-agitate the question of whether he should be granted leave to appeal, which has already been determined.

7. For these reasons, Dr Zepinic’s notice of motion filed on 22 July 2020 is dismissed with costs.

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Decision last updated: 10 December 2020