Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kostov v State of New South Wales (No 2) [2019] NSWCA 66 Hearing dates: 27 March 2019 Date of orders: 27 March 2019 Decision date: 27 March 2019 Before: Bell P; Basten JA; Meagher JA Decision: Application for an adjournment refused. Catchwords: CIVIL PROCEDURE – informal application for adjournment – hearing previously vacated on the application of applicant -- no cogent reasons advanced in favour of adjournment Legislation Cited: Court Suppression and Non‑publication Orders Act 2010 (NSW), s 13(3) Supreme Court Act 1970 (NSW), s 23 Vexatious Proceedings Act 2008 (NSW), s 8(7) Cases Cited: Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794 Kostov v State of New South Wales [2019] NSWCA 17 Category: Procedural and other rulings Parties: Adriana Kostov (Applicant) State of New South Wales (Respondent) Representation: Counsel: No appearance for Applicant D Birch (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2019/2669 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 1794 Date of Decision: 19 November 2018 Before: Fagan J File Number(s): 2018/95485 [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.] EX TEMPORE Judgment 1. BELL P (for the Court): There is set down for hearing today before the Court of Appeal a summons filed by Ms Adriana Kostov seeking leave to appeal from the decision of Fagan J, Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794, in which his Honour made various orders including orders pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW). 2. There is also listed before the Court a notice of motion filed in the same proceedings by the Attorney General for New South Wales seeking, pursuant to s 23 of the Supreme Court Act 1970 (NSW), leave for the Attorney as intervener to be joined to these proceedings as second respondent or, in the alternative, to be permitted to participate as an amicus curiae and seeking orders that the Court review a range of suppression or non‑publication orders made in various sets of proceedings, and that any suppression or non‑publication orders made be varied pursuant to s 13(3) of the Court Suppression and Non‑publication Orders Act 2010 (NSW) so as to permit the Attorney and his legal advisers access to some eight interlocutory and final judgments listed in prayer 5 of the notice of motion. 3. Subsequent to the filing of the notice of motion and the initial affidavit of Mr Luke Teo filed in support of the Attorney's application, the motion has been narrowed to seek access to have the suppression orders varied in respect of only three judgments. 4. Email correspondence was sent to my chambers by Ms Kostov at 6.26pm on Friday 15 March requesting the matter be moved to the week of 29 April 2019. By an email to the Registrar of the Court of Appeal sent at 7.59am on Monday 18 March 2019 and also copied to my chambers, Ms Kostov peremptorily stated that: "Dear Registrar, Apologies for emailing the President directly - but as you can see, now we have the State's Legal Officer emailing me unfiled documents simply to ruin my weekend and harrass [sic] me. It is not acceptable. In light of all the circumstances, including the election and ICAC review,may I as [sic] this matter be moved to week of 29 April, so I can focus on work. I should not have to fend all of this stuff off on my own". 1. On 25 March 2019 at 2.38pm, Ms Kostov emailed the Registrar of the Court of Appeal stating that she had asked Ms Malhotra, the Acting Crown Solicitor, to consent to the matter being adjourned to the week of 29 April. That email was not initially copied to Ms Malhotra but was sent to her a short time later. 2. On Tuesday, 26 March 2019, the Registrar of the Court of Appeal emailed Ms Kostov acknowledging receipt of certain affidavits sent in the DX and the subject of an email sent by Ms Kostov to the Registrar earlier that morning in which Ms Kostov stated: "I do not know whether a decision can be made by the Court to simply have all this heard, in the week of 29 April, as I repeated [sic] asked, for a valid reason". 1. In his email of 11.13am on 26 March 2019, the Registrar made it plain that: "The matters remain listed for hearing tomorrow. If you do not appear tomorrow, the matters will proceed in your absence". 1. Within three minutes of receiving that email, Ms Kostov replied by email stating: "As I have said - I am busy at work, I have had the Crown, cause me enough disruption of my work, the past 6 months, and as such, I cannot appear tomorrow, and have asked, for such matters, to be heard, the week of 29th April 2019. accordingly. I'm not sure whether Ms Malhotra, consents to the course I suggest." 1. By an email of 11.49am on 26 March 2019 on behalf of the Crown Solicitor, Ms Kostov was informed that the Attorney General did not consent to her request for an adjournment. 2. By an email sent at 3.10pm on 26 March 2019 ‑ that is, yesterday ‑ Ms Kostov wrote to the Registrar saying that "[she] will have a lawyer appearing tmoro [sic], but only to seek an adjournment [and that] in such circumstances [she] would appreciate Ms Malhotra consenting to such." 3. In a further email sent to Mr McDonnell of the Crown Solicitor's Office at 5.21pm last night, Ms Kostov repeated her request for an adjournment and said, "[w]ork comes first, my career comes first, so I am in no position to be present tomorrow". 4. In an affidavit filed on 26 March 2019 and sworn the previous day, Ms Kostov said, in para 2, as follows, "I'd asked for this matter to be relisted to the week of 29th April 2019… for the reason that, I am very busy at work". 5. By a further email received at 9.39am this morning, Ms Kostov indicated that, contrary to earlier communications, she would not be represented by a legal representative in Court this morning. 6. Ms Kostov's affidavit to which I have referred comprises some 40 paragraphs. Paragraphs 4 to 36 contain material, none of which supports the granting of any adjournment, although it does contain the claim by Ms Kostov in para 4 that she is "in fact, one of Australia's most intelligent women". In paras 37 to 39, Ms Kostov says: "I do not understand, why, it I [sic] allowed in the legal sector. This is all, detracting from my work. No human being, should be expected to work 80 hour weeks, and fight off, the Attorney as well. This is not acceptable. It is costing me time, and money. As such, I ask the Court respect the fact, I am a highly intelligent member fo [sic] our professional [sic], who is being harassed for improper purpose [sic] – and let me deal with this matter – in my own time – around work commitments. I ask this matter, be therefore adjourned to week of 29th April 2019 or thereafter in May". 1. The Attorney's notice of motion, which is before the Court, was originally set down for hearing on 21 February, but that date was vacated on the application of Ms Kostov. 2. As McCallum JA observed in para 16 of her judgment in this matter reported at [2019] NSWCA 17 delivered on 11 February 2019, Ms Kostov's application for leave to appeal and the Attorney's notice of motion were both listed for hearing today: that is to say, both matters have been set down for hearing today for approximately six weeks. 3. No cogent reason has been advanced for granting the adjournment sought. The reason stated on a number of occasions for the adjournment sought is so that Ms Kostov can "focus on work" and be "permitted to deal with this matter – in [her] own time – around work commitments". 4. In this Court, matters are set down well in advance of hearing to allow for their orderly preparation. When a matter is set down for hearing, the Court commits to making two or three judges available, depending on the nature of the case, to hear a matter and those judges are thereby not available to hear other matters which could have been set down on the same day. The Court system could not otherwise function, and there is no merit whatsoever in Ms Kostov's informal application for an adjournment of proceedings. 5. The informal application is refused. ********** 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: 09 April 2019