Kostov v YPOL Pty Limited [2017] NSWSC 1862

Supreme Court New South Wales

Medium Neutral Citation: Kostov v YPOL Pty Limited [2017] NSWSC 1862 Hearing dates: 19, 20 September 2017 Decision date: 20 September 2017 Jurisdiction: Common Law Before: McCallum J Decision: All judgments in proceedings Kostov v YPOL Pty Limited be removed from Caselaw and not be published up until and including 18 October 2017 or until further order of the Court of Appeal. Catchwords: CIVIL PROCEDURE Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Category: Procedural and other rulings Parties: Adriana Kostov (plaintiff) YPOL Pty Limited (defendant) Representation: Plaintiff self-represented No appearance by the defendant File Number(s): 2016/257819 Publication restriction: Pursuant to orders made by the Court of Appeal on 25/2/19 non publication orders have been vacated

Judgment 1. HER HONOUR: These proceedings were commenced by the plaintiff against a law firm for reasons the plaintiff now acknowledges to have been misconceived. As it has transpired, the plaintiff was at the time of the commencement of the proceedings labouring under the burden of a mental illness; that goes some way, if not the whole way, to explaining her decision to commence and prosecute the proceedings. 2. As the illness took its course, the plaintiff's conduct deteriorated to a point where a judge of this Court was persuaded to make restraining orders against her preventing her from contacting the law firm. The plaintiff, again labouring under the burden of mental illness, breached those orders and was ultimately dealt with for contempt. 3. At the sentence proceedings on the contempt motion, proper medical evidence as to the plaintiff's condition was finally available and ultimately she was convicted with no further penalty. The proceedings were finally determined by Fagan J in a judgment published on 22 August 2017. 4. In the proceedings on sentence the plaintiff was legally represented. She had until that point represented herself, with unhappy consequences. An aspect of the argument put by counsel on the plaintiff's behalf at the proceedings on sentence was to seek the continuation of a non-publication order that had been made in the proceedings. 5. In the sentencing judgment of Fagan J at [69], his Honour recorded that, on 11 July 2017, on the application of the plaintiff and without opposition from the defendant, his Honour made an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting publication or disclosure of evidence given in the contempt proceedings concerning the plaintiff's psychiatric illness. His Honour noted that the order was made upon evidence indicating, prima facie, that such publication would subject the plaintiff to additional stress which might exacerbate her disorder. His Honour declined to continue the order on a final basis. The reasons stated in the judgment at [70] and following were, in short, that his Honour was not satisfied that continuance of the order was necessary to protect the plaintiff against a risk of self-harm. His Honour was prepared, however, to afford the plaintiff an opportunity to apply for deferral of publication of the judgment pending any application for leave to appeal from his decision in that regard and from the vacation of the non-publication order. His Honour indicated that, if deferral of publication was not sought, or if his Honour refused it, or if there was no application for leave to appeal, the reasons would be published generally. 6. The plaintiff sought, by notice of motion, to obtain an order deferring publication pending an application for leave to appeal. However, the motion was not filed. It appears the application was sought to be made in the first instance by contacting Fagan J's chambers, but there was no response to that communication. In the circumstances, the plaintiff brought the application before me, as Duty Judge, yesterday. 7. The plaintiff has not yet filed an application for leave to appeal against Fagan J's interlocutory judgment, but has indicated her intention to do so today. If the application is filed today, it will be in time; but it may be that the plaintiff is in no better position than to be able to file a notice of intention to seek leave to appeal together with an application for an extension of time at this stage. She has made a further application for legal aid, having previously been given a grant of aid in respect of the contempt sentencing proceedings; but that application has not yet been determined, and she wishes to have the benefit of legal advice in formulating the terms of any summons and supporting material seeking leave to appeal. 8. The plaintiff's submissions yesterday and this morning have persuaded me that it is appropriate to preserve her position pending the commencement of an appeal. The material before Fagan J included a report from a psychiatrist, Dr Ellis. He was retained to examine the plaintiff's mental state at the time of the conduct found to constitute a contempt and also to assess her mental state as at the time of his report (dated 28 June 2017). Dr Ellis found that the plaintiff would meet the criteria for bipolar disorder and expressed the opinion, amply corroborated by the circumstances of the proceedings themselves, that most likely at the time of initiating the proceedings and then defending countering legal proceedings the plaintiff was suffering from a manic or hypomanic episode consistent with the diagnosis. 9. Dr Ellis provides a compelling explanation of the basis for that opinion. He recommended a treatment plan and the plaintiff says she has adhered to that plan since that time. Her presentation before me today is noticeably different from my experience of her in a short application earlier in the proceedings. 10. On the question of publication of either Ms Kostov's identity or the detail of her medical condition in these proceedings, the doctor said: Ms Kostov has engaged in behaviours which are likely to be highly damaging to her reputation and career. She is only now coming to terms with her diagnosis. She is yet to receive effective treatment. Bipolar disorder has a high rate of suicide. Publicly naming her regarding to proceedings would likely impact greatly on her sense of self identity and motiviation to engage with treatment. I would consider publicaition detrimental to her mental state and an additional risk to self. 1. It was on the strength of that part of the doctor's report that Ms Kostov's counsel submitted before Fagan J that the non-publication order should be continued. 2. The reasons published by Fagan J include a finding that the plaintiff's infringing conduct which constituted the contempt of court has been "of an open and public nature, including her attendance at the defendant's office and creation of a confrontation". 3. His Honour also observed that the whole episode had been the subject of a number of published judgments of the Court and in those circumstances evidently questioned the continuing practical utility of a non-publication order. However, that was the very basis of the application for the non-publication order. In particular, having now recovered, in the main, from the manic or hypomanic phase of her illness, the plaintiff looks back at the very public conduct in which she has engaged and says she regrets it deeply. 4. Justice Fagan also referred to the importance in the interests of open justice of publishing details of the contempt. It may be accepted that it is in the interests of justice for there to be consideration of the kind of issues raised in the various judgments in these proceedings in a manner that is available for public consideration and scrutiny. However, it is at least arguably not necessary for that purpose to name the plaintiff, as opposed to identifying the circumstances of the case and the consequences of those circumstances. 5. Finally, his Honour observed that, while the doctor adverted to a risk of self-harm, there had until this point been no self-harm. Ms Kostov contends that that is inaccurate. In any event, in my respectful opinion, it is doubtful whether it is a consideration which should be determinative. If an experienced medical practitioner in the relevant field of practice adverts to a risk of self-harm, in my respectful opinion, it behoves the Court to pay due regard to that opinion rather than to analyse the issue as if it were simply one of what evidence exists in the sense of there being formal proof of actual harm before the Court. 6. There is, in my respectful opinion, sufficient doubt as to the conclusion reached by Fagan J concerning publication of the plaintiff's identifying details to think that the plaintiff's position should be preserved pending any application for leave to appeal against his Honour's ruling. For those reasons, I consider it appropriate to make orders to give effect to that conclusion. 7. Ordinarily, it would not be appropriate for a court sitting at first instance to make an order that had the effect of overturning the decision of another judge sitting at first instance pending an appeal. All that would ordinarily be appropriate would be for the Court to grant a stay so as to preserve the position pending appeal. In the circumstances I have described, however, the very interest sought to be vindicated by the prosecution of the proposed appeal is the question of disclosure of the judgments. For those reasons, moulding the relief as best I can, I think it is appropriate to make an order for a short period that none of the judgments published to date in these proceedings continue to be published on the Court's judgment website, Caselaw. Ms Kostov should, however, prosecute the appeal quickly, and it should be for the Court of Appeal to determine whether that order should be continued pending hearing of the appeal. 8. For those reasons, the order I make today is that all judgments in proceedings Kostov v YPOL Pty Limited be removed from Caselaw and not be published up until and including 18 October 2017 or until further order of the Court of Appeal.