Kostov v Commissioner of Police, NSW Police Force (No 3) [2020] NSWSC 1122

Supreme Court New South Wales

Medium Neutral Citation: Kostov v Commissioner of Police, NSW Police Force (No 3) [2020] NSWSC 1122 Hearing dates: 21 August 2020 Date of orders: 25 August 2020 Decision date: 25 August 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the plaintiff's notice of motion filed 3 June 2020. (2) Order the plaintiff to pay the defendant's costs of the notice of motion within 28 days of their being ascertained by agreement or further order. (3) Reserve liberty to the defendant to apply for a lump sum costs order in default of agreement being reached within 56 days. Such liberty is to be exercised by no later than 14 days after the 56 day period. Catchwords: CIVIL PROCEDURE – judgments – setting aside application under UCPR r 36.16 to set aside judgment - where plaintiff convicted of criminal offences by Local Court – appeal to Supreme Court under Crimes (Appeal and Review) Act 2001 – where plaintiff absented herself from part of the hearing in which judgment was given - appeal refused - whether judgment could be set aside - appeal within definition of "criminal proceedings" - no application of Uniform Civil Procedure Rules – no denial of procedural fairness – application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) s 3 Crimes Act 1900 (NSW) s 254 Crimes (Appeal and Review) Act 2001 (NSW) Pt 5 Criminal Procedure Act 1986 (NSW) s 196 Judiciary Act 1903 (Cth) s 78B Legal Profession Uniform Law Application Regulation 2015 (NSW) Pt 6 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Supreme Court Act 1970 (NSW) s 101 Uniform Civil Procedure Rules rr 1.5, 36.16 Vexatious Proceedings Act 2008 (NSW) ss 4, 5, 8, 13 Cases Cited: Cunningham v Cunningham (No 2) [2012] NSWSC 954 Kostov v Commissioner of Police [2020] NSWSC 678 Kostov v Commissioner of Police (No 2) [2020] NSWSC 679 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Northern Territory v Sangare (2019) 265 CLR 164 Northey v Bega Valley Shire Council [2012] NSWCA 28 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Sayer-Jones v Director of Public Prosecutions (No 2) [2019] NSWSC 1786 Turner v Wheeler (No 2) [2016] NSWSC 431 Texts Cited: Nil Category: Procedural and other rulings Parties: Adriana Kostov (Plaintiff) Commissioner of Police, NSW Police Force (Defendant) Representation: Counsel: In person (Plaintiff) J Emmett (Defendant)