Supreme Court New South Wales Medium Neutral Citation: Kostov v YPOL Limited [2017] NSWSC 395 Hearing dates: 6 April 2017 Decision date: 06 April 2017 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the notice of motion filed in court by the plaintiff on 28 March 2017. 2. Order the plaintiff to pay the defendant's costs of the motion. Catchwords: PRACTICE AND PROCEDURE – plaintiff held to be in contempt of court in her absence – plaintiff applied to set aside orders – no irregularity, illegality, or want of good faith shown – power to vary or set aside pursuant to UCPR r 36.16 ought not be exercised in present case because of the principle of finality – relevance of the plaintiff's conduct in the course of a telephone call in which she unsuccessfully applied to adjourn the proceedings Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16(1), 36.16(2)(b), 42.1 Category: Procedural and other rulings Parties: Adriana Kostov (Plaintiff) YPOL Pty Limited (Defendant) Representation: Counsel: Plaintiff in person S Callan (Defendant) Solicitors: Sparke Helmore Lawyers (Defendant) File Number(s): 2016/257819 Judgment: EX TEMPORE 1. The plaintiff moves by notice of motion, filed in court on 28 March 2017, for an order to set aside the judgment of Fagan J made on 27 March 2017. The plaintiff relies on this Court's power to set aside a judgment under Uniform Civil Procedure Rules 2005 (NSW), rr 36.15 and 36.16. I propose to consider these rules in turn. 2. UCPR rule 36.15 provides that: "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." 1. Nothing Ms Kostov has said has persuaded me that that rule is applicable. 2. Accordingly, I turn to the other rule on which she relies, UCPR r 36.16. It is accepted by Ms Callan, who appears on behalf of the defendant, that UCPR r 36.16(1) and UCPR r 36.16(2)(b) are potentially applicable in the present case. UCPR 36.16(1) provides that: "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." 1. The orders made by Fagan J are accepted to have been entered on 3 April 2017. As the plaintiff's motion was filed on 28 March 2017, the rule is applicable. 2. UCPR r 36.16(2)(b) provides that: "The court may set aside or vary a judgment or order after it has been entered if it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order." 1. Ms Kostov submitted that, as the charges are serious ones and as she has pleaded not guilty, it is inappropriate that they were determined in her absence. She has submitted that at the time of the hearing she was suffering from medical difficulties as a result of which she was very distressed. I note from the transcript of the proceedings on that day that Fagan J attempted, successfully, to contact her by telephone and the conversation is recorded on the transcript. There were, regrettably, two difficulties associated with that contact. The first of which was a practical one in that when Fagan J managed to communicate with the plaintiff she told him she had very little battery life left on her telephone. Secondly, Fagan J concluded that he could not proceed with the telephone call because of the way the plaintiff was communicating with him. These matters are recorded on the transcript and are the subject of comment in his Honour's judgment. His Honour declined the plaintiff's application for an adjournment of the hearing of the contempt charges after hearing from the plaintiff on the telephone and after having been provided with a copy of a medical certificate in respect of the plaintiff by Ms Callan. 2. After refusing the plaintiff's application for adjournment, his Honour considered whether a bench warrant should be issued to bring the plaintiff before the Court. However, he decided that the deprivation that such a course would occasion would be undesirable and proceeded to hear the charges of contempt. Fagan J was aware, as a result of the telephone conversation which was recorded on transcript that the plaintiff had pleaded not guilty to each charge of contempt, and that, accordingly, the onus of proof fell on the defendant to prove each charge to the requisite standard. 3. There was then a hearing of the charges at which the defendant adduced evidence which included admissions made by the plaintiff in this Court which were recorded in part on transcript in which she admitted that she made contact with the defendant by text, telephone call and email, in breach of the order made by Bellew J that on 1 December 2016 that she desist from communicating with the first defendant, its servants and agents other than by email to a particular address care of sparke.com.au, being Sparke Helmore, the defendant's solicitors in the proceedings. 4. The application made by the plaintiff in the present proceedings under UCPR r 36.16 presents the following difficulty. Although the Court has power to set aside or vary a judgment in certain circumstances which I have identified under that rule, there is an overriding principle of finality that where the Court has heard and determined a matter on the merits, even in the absence of a party, it can disrupt the public interest in finality to reopen proceedings to enable a significant rehearing. As I apprehend it from the plaintiff, what she seeks is just that; namely, a significant rehearing. 5. She complains that she has not been heard on the contempt charges. But, in my view, the reality of the situation is that while she has been afforded an opportunity to be heard, she did not avail herself of that opportunity. 6. Hearings before this Court, including those that take place in the absence of a party, are not dress rehearsals. They are intended to be a final determination of the matters in issue, subject of course to the right of the unsuccessful party to appeal to the Court of Appeal. 7. The adjournment application was dealt with by Fagan J, although technically in the absence of the plaintiff, after having communicated with her by telephone in order to accommodate her non-availability to be present in Sydney for the hearing. 8. In these circumstances, it is even more important, in my view, that the matters which Fagan J addressed in deciding not to adjourn the application be given due weight by any subsequent Court, so as not to give the impression that hearings in this court are not to be taken seriously. 9. I note that the plaintiff has raised several matters in mitigation of her present circumstances. She has submitted, somewhat inconsistently, that, although she has pleaded not guilty to the charges, there are several factors which led her to engage in certain conduct. She has said, in effect, that it was the conduct of the defendant which caused her to act in a particular way, and contended that her way of dealing with the defendant's conduct towards her was reasonable and justifiable. 10. I am not persuaded that it would be appropriate to set aside, or vary, Fagan J's judgment in which he finds the charges of contempt made out. In my view, the plaintiff did have an opportunity to be heard but chose, for whatever reason, not to avail herself of that opportunity. Furthermore, the hearing appears to have proceeded at all times on the basis that the onus of proof had to be discharged by the defendant to the requisite standard because of the plaintiff's plea of not guilty to each of those charges. In my view, the principle of finality is a very significant one and leads me to decline the application to set aside the judgment which is the subject of the plaintiff's notice of motion today. 11. I note that the sentencing hearing for the contempt charges has not yet taken place. Directions were made by Fagan J that the plaintiff be interviewed for the purposes of the preparation of a pre-sentence report. Many of the matters raised by the plaintiff in mitigation would be appropriate matters for consideration either by the author of the pre-sentence report or at the sentence hearing. 12. Accordingly, I dismiss the notice of motion filed in court by the plaintiff on 28 March 2017. 13. I note that the defendant seeks an order that the plaintiff pay its costs of the notice of motion. UCPR r 42.1 provides that, in general terms, costs ought follow the event unless it appears to the Court that some other order should be made. I am not persuaded by the submissions of the plaintiff, or otherwise, that it would be appropriate that some other order should be made. In my view it is appropriate that costs follow the event. 14. Accordingly, I order the plaintiff to pay the defendant's costs of the motion. Orders 1. I make the following orders: 1. Dismiss the plaintiff's notice of motion filed 28 March 2017. 2. Order the plaintiff to pay the defendant's costs of the motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2019