Supreme Court New South Wales Medium Neutral Citation: Stojanovski v Stojanovski (No 2) [2020] NSWSC 558 Hearing dates: On the papers Date of orders: 13 May 2020 Decision date: 13 May 2020 Jurisdiction: Equity Before: Robb J Decision: See par [48]. Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — where the Court has an inherent power to decide whether to entertain an application by a party for the review and withdrawal or variation of findings and reasons contained in a judgment that has been published – where the plaintiff sought such a review – where this was refused per the principles in Elliott v R (2007) 234 CLR 38; [2007] HCA 51 Legislation Cited: Family Provision Act 1982 (NSW) Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Elliott v R (2007) 234 CLR 38; [2007] HCA 51 Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 Stojanovski v Stojanovski [2019] NSWSC 1713 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Consequential orders (other than Costs) Parties: Steven Stojanovski (plaintiff) Robert Stojanovski (first defendant) Jovanka Stojanovski (second defendant) Jordan Stojanovski (third defendant) Angelina Stojanovski (fourth defendant/cross-defendant) Fabian Kane Micheletto (fifth defendant/first cross-claimant) Michael Carrafa (sixth defendant/second cross-claimant) Representation: Counsel: Solicitors: One Group Legal (plaintiff) ICL Lawyers (fourth defendant/cross-defendant) Polczynski Robinson (fifth and sixth defendants/first and second cross-claimants) File Number(s): 2012 / 89349 Judgment 1. The Court published its principal judgment in this matter on 4 December 2019: see Stojanovski v Stojanovski [2019] NSWSC 1713. 2. At [613]-[618], I considered the process that would be necessary to enable the Court to make final orders, and invited the parties to confer and submit draft short minutes of order to the Court. 3. At a directions hearing that was listed to enable case management orders to be made in respect of the determination of the orders necessary to give effect to the reasons in the principal judgment, counsel for the plaintiff advised the Court that the plaintiff would make an application to the Court for a review of the reasons in the principal judgment and the setting aside of certain findings made by the Court. 4. The plaintiff delivered draft short minutes of order to the Court. Proposed order 1(a) provided for the plaintiff to file and serve a notice of motion applying for a review and setting aside of certain findings of the Court in its principal judgment. 5. For case management purposes, I arranged for my associate to send an email to the legal representatives of the parties on 24 March 2020. On the subject at hand, that email noted that the plaintiff had not given to the Court any indication of the nature of the findings for which review was sought, the reasons why the findings should be reviewed, the power of the Court in all the circumstances to review the findings, and the reasons why that power should be exercised. 6. The email indicated that I was not prepared to make order 1 proposed by the plaintiff without the plaintiff first providing to the Court and the other parties "a statement of the relevant findings, a concise reason as to why they should be reviewed, and identification of the power of the trial judge to review, and concise reasons as to why that power should be exercised". 7. The email directed that the explanation should be sufficient to enable the other parties to put brief submissions to the Court as to whether the application should be entertained, and to enable the Court to decide that question. That direction was made, as the email observed, because otherwise there was too great a risk that the other parties may needlessly incur costs and the time of the Court may be wasted. 8. On 8 April 2020, the plaintiff's solicitors delivered to my associate a draft notice of motion that the plaintiff wished to have returnable on 11 August 2020. That was the earliest date that the Court had available to hear submissions from the parties as to the final orders that should be made, on the basis of an estimate by the plaintiff's counsel that a hearing of two days would be required. The email advised my associate that senior counsel had been briefed to appear for the plaintiff at the hearing. 9. The draft notice of motion sought the following orders: 1. An order that paragraphs 38, 42, 63, 167, 191, 217, 218, 215 (sic), 218 (sic), 226, 228, 229, 247, 279, 284, 399, 411, 427, 430, 446, 447, 448, 451, 453, 454, 484, 485, 579, 580, 583, 584, 585 in the reasons for judgment of The Honourable Justice S Robb dated 4 December 2019, which has the media (sic) neutral citation of Stojanovski v Stojanovski [2019] NSWSC 1713 ("the 4 December reasons for judgment"), and the findings made in those paragraphs be formally withdrawn or otherwise set aside upon review of the 4 December reasons for judgment. 2. There be a stay of the making of any orders or the entry of any judgment to give effect to the 4 December reasons for judgment pending the conclusion of the review on the merits of the correctness of those paragraphs of the 4 December reasons for judgment which are referred to in paragraph 1 above and of the findings made in those paragraphs by The Honourable Justice S Robb. 1. The plaintiff's solicitor provided written submissions dated 8 April 2020 as to the source of the court's power to review the findings challenged, an identification of the findings in respect of which review was sought and an outline of the reasons why the findings should be reviewed. 2. On 21 April 2020, the fifth and sixth defendants delivered submissions in response, as did the fourth defendant on 22 April 2020. No response was expected from the first defendant, as the fourth and fifth defendants are the trustees in bankruptcy of the first defendant. For a considerable time, the second defendant, who is the former wife of the plaintiff, has been excused from participating in the proceedings. The third defendant is the executor of the estate of the late mother of the plaintiff and the first defendant, and he has not taken any part in these proceedings. 3. The position taken by the fourth defendant, and the fifth and sixth defendants, was that the Court should not entertain the plaintiff's application. That is because it would be impermissible in the particular circumstances of the case for the Court now to revisit matters in respect of which findings of fact have been made, or to permit the plaintiff to re-agitate any factual and legal findings that have been made in the principal judgment. 4. Because of the unusual circumstances presently being experienced, which have interfered with the ordinary procedures of the Court, the plaintiff's notice of motion has not formally been filed. For the reasons that follow, I will make an order giving the plaintiff leave to file his notice of motion, and then I will make an order summarily dismissing the notice of motion. 5. The plaintiff's application to file his notice of motion, and for the fixing of a return date for the hearing of the notice of motion, raises a number of issues that are not frequently required to be addressed by the Court. The first concerns the circumstances in which a party may apply, after the publication of reasons for judgment by the Court and before the entry of orders, for the judge to reconsider and withdraw aspects of the findings and the reasons in the judgment. Is a party entitled to file a notice of motion seeking relief of this type, on the basis that it has a right to have the motion heard, so that the other parties will be put to the expense of resisting the motion and preserving the Court's reasons for judgment? If a party had such a right, then considerable delay and wastage of costs could ensue. The Court and the other parties would be subject to the burden of responding to arguments about the adequacy and consistency of the reasons for judgment that would often be collateral to the hearing and determination of the proceedings themselves. It is one thing for the Court to be open to correcting true mistakes and omissions in the proper process of determining the claim, but it is entirely another for the Court to entertain, as of right, motions by parties dissatisfied with the reasons for judgment for aspects of the judgment to be withdrawn. Alternatively, should a party be required to apply for leave to the Court to be permitted to contest the adequacy and consistency of the reasons and to seek changes to those reasons? 6. A related issue is whether, if the Court gives the applicant a sufficient opportunity to explain the nature and the basis of its motion, the Court has power to refuse permission for the notice of motion to be filed, or alternatively, to permit it to be filed and then dismiss it summarily, if the Court takes the view that neither the Court nor the other parties should be put to the trouble and expense of dealing with an application by the party seeking the relief to review the reasons for judgment? 7. I gave the directions explained above to the parties in order; first, to give the plaintiff an opportunity in a summary way to explain the nature and the basis of his claim; and secondly, to provide the Court with a foundation to deal with the plaintiff's application properly, if the Court took the view either that the application could not be made without leave, or that the Court could properly dismiss the notice of motion in a summary way. 8. I am not aware of any authority that deals with these issues in their specific context. I take the view that, once the Court has reserved judgment and in due course published considered reasons for judgment, it is inherently a matter for the particular judge to decide whether that judge has made a true mistake or omission that calls, as a matter of justice and procedural fairness, for the error to be corrected before orders are made; rather than for the aggrieved party to be left to pursue an appeal. I am not aware of any judicial or professional acceptance of a party's right to require the Court and the other parties to deal with a challenge to the findings of fact and reasoning in a judgment that has been published before orders have been made. 9. I take the view that the Court, in the person of each judge who is responsible for the publication of reasons for judgment, has an inherent power to decide whether to entertain an application by a party for the review and withdrawal or variation of findings and reasons contained in a judgment that has been published. That inherent power must be exercised judicially and only after the party has been given a sufficient opportunity to explain the justification for the application. If this power were not available, then neither the Court nor the other parties would have adequate protection from the possible abuse of the Court's processes if unsatisfied parties had a right to contest the adequacy and consistency of reasons for judgment after publication. I consider that the source of this power is that described by Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221; which was approved by Gleeson CJ and Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [10]. His Lordship said that "the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse…" 10. Consequently, I consider that the Court has the inherent power, on an application such as the present, to either decline leave to file, or to summarily dismiss, a notice of motion that seeks the relief pursued by the plaintiff in the case of the notice of motion under consideration. 11. It is necessary for the Court to consider the principle that may govern when it is proper, and when it is not, for a judge to review reasons for judgment after they have been published, but before orders have been made and entered. 12. It is sufficient, in my view, for the Court to act upon the principles set out in the following passage of the joint judgment of the High Court in Elliott v R (2007) 234 CLR 38; [2007] HCA 51 at [32] (footnotes omitted): It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason [No 2]. His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to re-open had been exercised on grounds not limited to denial of a fair hearing [55], but went on [56]: "What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." The circumstance in Autodesk that Mason CJ dissented as to the outcome of the re-opening application which was before this Court does not detract from his remarks. 1. In my view, it is clear that what the plaintiff is seeking to do is to implement a backdoor method, as a partially unsuccessful litigant, to seek to reargue his case. 2. The Court would probably be justified in dismissing the plaintiff's notice of motion out of hand. It plainly seeks to re-agitate carefully considered reasoning and findings in the principal judgment. The plaintiff's submissions do not identify any material misapprehension of the facts or the relevant law. It would place an invidious burden on the defendants who are still contesting the plaintiff's claims to require them to incur further substantial legal costs in resisting the orders now sought by the plaintiff. This is not a case where the plaintiff has identified what may be argued to be a reasonably narrow error made by the Court in its reasons for judgment. The plaintiff seeks to re-agitate the reasons on complex grounds, often involving assertions that the conclusion stated in one paragraph is inconsistent with the reasoning in another paragraph. The arguments that the plaintiff wishes to pursue are all inherently contentious. If he were permitted to pursue a re-examination of the reasons for judgment, that would give rise to many complex and debatable questions that would only serve to further substantially delay the proper conclusion of these proceedings at first instance. In fact, what is now obviously necessary is for the parties to facilitate the Court being in a position to make final orders so that any parties who wish to can pursue their rights of appeal. The defendants should not suffer the ordeal of having to argue these contentious questions once before the trial judge, and then again in the Court of Appeal. 3. As I have said, I will not dismiss the plaintiff's notice of motion out of hand. I have considered his submissions and revisited the reasons in the principal judgment, in order to gain a proper understanding of the challenges that the plaintiff seeks to make to the reasons. 4. I propose to give short reasons for my conclusion that the plaintiff in reality is seeking to reargue his case, and also as to my opinion that there is no merit in the plaintiff's contentions at this stage of the proceedings. Whether or not the Court of Appeal may be persuaded to take a different view is a different matter entirely. 5. Most of the plaintiff's complaints relate to observations made in the primary judgment concerning questions of legal costs. Those costs issues related to the costs of these proceedings and other proceedings in this Court and other courts in which the parties have been involved. In a substantial number of cases, the plaintiff's complaint is that the Court has made a preliminary finding on a question of costs that was not before the Court for decision, or involved a pre-judgment of the exercise of the discretion as to costs that may come before this or some other court in the future. That shorthand description of the complaint does not fully state the reasons relied upon by the plaintiff. 6. It seems that, one way or another, the plaintiff's complaints concerning the following paragraphs concern questions related to legal costs: paragraphs [226], [247], [279], [284], [399], [427], [430], [446], [447], [448], [451], [453], [454], [484], [485], [584] and [585]. 7. The plaintiff is correct in suggesting that the primary judgment contains a substantial discussion of the legal costs incurred by the parties in the present proceedings, other proceedings in this Court and proceedings in other courts. That discussion did not take place in the context of the Court being required to determine the proper costs orders to be made in the present proceedings. The Court has not yet received all of the parties' submissions on that subject, and it will be one of the matters addressed by the parties and the Court on 11 August 2020. 8. From my perspective, it was necessary to enter upon the subject of the legal costs incurred by the parties for the following reason. That reason is a summary of the matters discussed at [410] to [415] of the principal judgment. 9. The plaintiff by these proceedings sought to enforce what has been described as the testamentary agreement between the first defendant and his late mother. The plaintiff ultimately succeeded on that claim. However, in the manner described in detail in the principal judgment, the plaintiff became embroiled in many other Court proceedings. His legal costs accumulated. As noted at [406], the total amount was $1,590,224.36 by the end of the hearing. 10. By the time of the hearing, the plaintiff had mounted a claim for a family provision order under the Family Provision Act 1982 (NSW). The essence of the plaintiff's claim was that a family provision order should be made out of the actual and notional estate of his deceased mother in an amount sufficient to enable him to pay all of the legal costs that he had incurred. 11. To justify that claim, much of the evidence led by the plaintiff, and the submissions made on his behalf, were directed at establishing that the reason for the plaintiff being required to incur the legal costs that he had incurred was wrongdoing, of one form or another, by his brother, the first defendant, and the fourth defendant, who was the brother's wife. Consequently, the evidence and the submissions delved into both the history of these proceedings and other proceedings that ordinarily would have little to do with these proceedings. 12. However, right at the end of the hearing, the plaintiff performed a forensic pirouette that fundamentally changed the nature of his family provision case. That change is considered in the paragraphs of the principal judgment that I have referred to above, particularly at [414]. It will be convenient to repeat that paragraph: 414. Although Steven no longer claims that a family provision order should be made in his favour which in a precise way will equal the entire amount that he now owes to his lawyers, and although Steven hopes to recover costs in the manner outlined above, as I understand his final position, Steven submits that the Court should determine his family provision application in a way that makes some general allowance for the probability that Steven will suffer an overall shortfall in his ability to pay to his accumulated legal fees, and make some appropriate allowance on the basis that the outstanding obligation is one of the factors to be taken into account in the application of both ss 7 and 9 of the Family Provision Act. 1. By this stage, the plaintiff's position was that he would enforce costs orders that had been made against various defendants in his favour, and seek costs orders against them in matters in respect of which courts had reserved costs. The plaintiff advised the Court that he would seek costs orders from the relevant judges who had reserved costs, rather than ask me to decide the outstanding questions of costs. This proposal was not without complications. Pembroke J had indicated an intention to retire. Flick J, in the Federal Court of Australia, had recorded an agreement between the parties to a proceeding in that Court that the costs of those proceedings should abide the outcome of the proceedings in this Court, but for reasons discussed in the principal judgment, it is not clear how that agreement might work. The matter was further complicated by the fact that the first defendant is bankrupt. 2. Whatever the effect of these complications may ultimately be, the result of the change in the plaintiff's forensic strategy was that he was asking the Court to make a family provision order in his favour in an indefinite amount. This was for the purpose of covering the shortfall in his legal costs, as a result of costs orders that have not yet been made, and whether or not made have not yet been taxed or assessed, and in respect of which it is not yet clear that all such costs orders would be paid. 3. Thus, the Court was put in what may, in reality, have been the impossible position of being forced to try to assess the amount necessary to make up the whole of the legal costs incurred by the plaintiff in circumstances where the amount of the balance is unknown and impossible to calculate. 4. The relevance of these considerations for present purposes is that it became necessary for the Court to give consideration to all of the proceedings in which the plaintiff had incurred legal costs, and to attempt to make a judgment – purely for the purposes of the plaintiff's application for a family provision order – as to the likely possible outcome of the making, taxing or assessment, and payment in respect of all outstanding questions of costs. 5. That is the reason for the discussion in the principal judgment of the costs questions of which the plaintiff now seeks to complain. The forensic strategy adopted by the plaintiff compelled the Court to attempt to make provisional judgments on the outcome of costs questions that were not before the Court for determination. 6. In the principal judgment I made it clear in various ways that, to the extent that I am required to decide any costs questions in these proceedings, I would need submissions on the issue: see for example [247]. I otherwise made it clear that the evidence before the Court was insufficient to determine questions of costs or the reasonableness of costs incurred: see for example [398], [399], [442], [443], [452], [456], [579], [584] and [585]. 7. The position is that any other judge who is required to determine any question of costs between the parties will be free to receive submissions and to ignore all of the observations that I was obliged to make as part of my determination of the plaintiff's family provision claim. To the extent that I may be required to decide those questions, I will also receive submissions, and none of the observations that I have already made will be conclusive in respect of the costs orders that should properly be made. 8. I should also record that the hearing in these proceedings commenced on 28 November 2016 and, after a hearing and adjournment and then a substantial delay, finished on 6 June 2019. It is not necessary in these reasons to repeat the reasons for the delay. However, it is well-established that delay between hearing and judgment can lead to error. A further reason why I made various observations on the costs issues in the principal judgment is that the parties, principally the plaintiff, had lead evidence and made submissions on the costs issues dealt with in the judgment. When I prepared the judgment, the issues were not always fresh in my mind, but it seemed to be proper, in the special circumstances of this case, to record my conclusions, lest even further delay would produce even more inconvenience and risk of error. 9. In addition to complaints about conclusions concerning costs, the plaintiff complained that the conclusions in certain paragraphs were inconsistent with the reasoning in other paragraphs, or inconsistent with findings made by other courts: see paragraphs [38], [42], [63], [218], a group of paragraphs being paragraphs [167], [191], [215], [218] and [226], [228] and [229] and [411]. 10. I do not intend to examine the submissions made by the plaintiff in respect of these supposed contradictions in detail. An argument by a party to proceedings that one conclusion reached by the Court is inconsistent with another conclusion necessarily involves a re-agitation of an issue raised at the hearing and dealt with in the reasons for judgment. 11. I add that many of the complaints the plaintiff wishes to make concern individual steps in the reasoning process that involved background and were not part of the "actual path of reasoning" as that term was used by the plurality in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]-[60]. As such, there is no warrant for the Court and the other parties to be put to the trouble of debating and resolving the alleged inconsistencies in the reasons in the principal judgment. 12. I will deal only with one example. The plaintiffs submitted that a finding at [38], to the effect that the plaintiff did not initially try to enforce the testamentary agreement, was inconsistent with a finding at [167] that the plaintiff could be criticised for entering into the deed of settlement without his wife's, the second defendant's, consent. The first of the paragraphs was concerned with the issue of why the plaintiff did not initially simply require the executor, the third defendant, to commence proceedings against the first defendant to enforce the testamentary agreement; and if the third defendant declined to do so, seek leave from the Court to represent the estate. In fact, the plaintiff negotiated a deed of settlement with the first defendant, but the plaintiff was unable to satisfy the conditions that made the deed of settlement unconditional. The plaintiff complained that the first defendant was at fault for not simply performing the deed of settlement, notwithstanding that it was the plaintiff's actions that lead to the deed of settlement becoming void. The conclusion at [167] of the principal judgment was to the effect that the plaintiff had not substantiated his claim that it was the first defendant's fault that the deed of settlement was not implemented. 13. I am entirely mystified as to the nature of the inconsistency, or even the relationship, between the subject matters of [38] and [167] of the principal judgment. 14. I have given this example merely to show how it would be inappropriate for the Court to entertain the plaintiff's desire to explore alleged inconsistencies in logic between various paragraphs in the principal judgment. 15. For these reasons, I make the following orders: 1. Grant leave to the plaintiff to file in court the draft notice of motion attached to the email from the plaintiff's solicitor to the associate to Robb J dated 8 April 2020. 2. Order that the notice of motion be returnable instanter. 3. Dismiss the plaintiff's notice of motion. 4. Reserve costs. 1. As I have not given the parties an opportunity to make submissions concerning the costs of the plaintiff's notice of motion, I will deal with the issue on 11 August 2020. ********** 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: 02 June 2020