Abriel & Ors v Bennett

Court of Appeal (NSW)|2003-11-10|Before: Meagher JA, Adams J, Tamberlin J, Dowsett J

CITATION : Abriel & Ors v Bennett [2003] NSWCA 323 HEARING DATE(S) : 17/09/03 JUDGMENT DATE : 10 November 2003

JUDGMENT OF : Meagher JA at 1; Davies AJA at 21 DECISION : Application dismissed with costs.

CATCHWORDS : LITIGANT IN PERSON: Dismissal of proceedings - CSR Pt 13 r 5 - appeal therefrom - Abuse of process. Rudolf Abriel & Ors PARTIES : v Annabelle Bennett FILE NUMBER(S) : CA 40464 of 2003 COUNSEL : A: In-Person R: S Rares SC, S Burley SOLICITORS : A: N/A R: Speed & Stracey

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 20634/01 FILE NUMBER(S) : LOWER COURT Adams J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40464 of 2003

MEAGHER JA DAVIES AJA

Monday, 10 November 2003 RUDOLF ABRIEL & Ors v ANNABELLE BENNETT Judgment 1 MEAGHER JA: Mr Rudolf Abriel seeks leave to appeal against an order of Adams J striking out a Statement of Claim by him against Annabelle Bennett, who at that time was a leading Senior Counsel and is now a judge of the Federal Court. 2 By "Mr Rudolf Abriel" in these reasons for judgment, I mean Mr Abriel, Mrs Abriel and Premier Knits Pty Limited. The legal issues involved in this appeal are the same for all three appellants. 3 The application was conducted by Mr Abriel in person. 4 In 1993, Mr Abriel sued Australian Guarantee Corporation and Westpac for damages for what in effect was alleged corporate fraud. It was settled by a Deed of Release on 5 April 1994. There is no need to delve into anything that happened before that date. However, what happened thereafter is of crucial importance. 5 No sooner was the ink dry on the 1994 Deed that Mr Abriel took it into his head to endeavour to set it aside. In fresh litigation he alleged that the Deed had been procured by undue influence, and also as a result of unconscionable behaviour. He prayed in aid the Trade Practices Act. This litigation was referred to mediation, apparently by Tamberlin J. It was settled by a second Deed of Release on 28 April 1998, on terms which involved AGC & Westpac paying Mr Abriel the sum of $90,0000. Up until the date when this Deed was executed, Mr Abriel was represented by Mrs Bennett. 6 Within a few months of the execution of the 1998 Deed Mr Abriel commenced, in the Federal Court, a third round of litigation to set that second Deed aside. In this round of litigation, the Abriels and their company were the applicants, and the defendants in the previous two rounds of litigation were the respondents. Oddly enough, Mrs Bennett was not a party. I say "oddly enough" because, in addition to matters raised in the previous litigation, it was now alleged that some impropriety by her was a factor in procuring the execution by Mr Abriel of the second Deed. 7 This third round of litigation ended in failure. Dowsett J, on 29 August 2000 dismissed the Abriel's action, and an appeal against his decision was unsuccessful. The High Court refused an application for special leave. 8 Up until the execution of the second Deed, Mrs Bennett had been Mr Abriel's counsel. Then she withdrew. She was succeeded by a Mr Rothman SC. 9 The circumstances relating to the departure of Mrs Bennett from the scene were of critical importance for an understanding of all the litigation which followed the execution of the second Deed. Those circumstances related to a document which has been called "the Grunstein letter". That was a letter written by Mr Abriel's solicitor, one Mr Stewart Levitt, to a Mr Grunstein, who apparently was a solicitor employed in the office of AGC's solicitors. It was a letter of some length, and was couched in rather emotional terms. Its concluding paragraphs were: "It would be a strange thing indeed if a firm so well regarded in the Jewish community as yours, were to act against the interests of the Abriels, in circumstances where the Jewish House is committing itself to their full support and enlisting the services of dedicated practitioners to come to the aid of his family, in their hour of need. It is not a case where Mr Abriel is culpable in any respect. The AGC Deed itself sought exculpation for fraud committed by AGC and Westpac against the Abriels. If a young Jewish professional does not come to the aid of an elderly Jew (especially in circumstances where you would not be sacrificing anything yourself and even gaining protection in the process) then do we not have to ask ourselves what Rabbi Akiba asked himself, "If I am not for myself, who will be for me?" This is a collective question, which we must confront as Rabbi Woolstone has done."

On any reasonable view, it was a plainly silly letter, but it would be difficult to ascribe to it any further operation. 10 During the negotiations which culminated in the second Deed, this letter was shown by AGC's counsel to Mrs Bennett. Mr Abriel alleged that he (AGC's counsel) had handed it to Mrs Bennett and said that it showed that Mr Abriel, Mr Levitt, and Mrs Bennett were all part of some organized Jewish conspiracy to put improper pressure on his clients. According to Mr Abriel, this had two adverse consequences as far as he was concerned: (a) it led to yet increased pressure on him to execute the second Deed, a document very much to his disadvantage, pressure to which he succumbed, and (b) it led to Mrs Bennett ceasing to act for him, contrary both to her duty and to her express promise. (One must add that at all times she had been acting for him without fee). 11 Mr Abriel's case was heard in the Federal Court for five days before Dowsett J, who found against him on all issues, after considering affidavit and oral evidence on all points. 12 Amongst other findings, his Honour held: s "There is no evidence that either of the respondents, Mr Dowdy, Mr Opperman or Mr Curd desired that Ms Bennett should cease representing the applicants. The evidence suggests to the contrary. s Mr Dowdy's disclosure of the Grunstein letter to Ms Bennett was motivated solely by his desire to demonstrate the reasons for the respondents' reluctance to pay money to the applicants in order to settle a claim which they (the respondents) considered to be without merit. s Ms Bennett at no time committed herself to acting for the applicants at trial. Disclosure of the Grunstein letter had no effect upon her decision not to do so. s Such disclosure also had no relevance to, and no effect upon any advice given by her to the applicants or her conduct of the mediation."

His Honour believed Mrs Bennett and disbelieved Mr Abriel. 13 As I have said, the Full Court of the Federal Court dismissed an appeal from that decision. 14 In a fourth round of proceedings, Mr Abriel sued Mr Rothman for his alleged misconduct in contesting the appeal to the Full Federal Court. That action was summarily dismissed by Burchett AJ on 8 November 2002 (Abriel v Rothman [2002] NSWSC 1056). 15 Then, in a fifth round of proceedings, Mr Abriel, who it would appear never tires of litigation, sued Mrs Bennett before Adams J, from whose decision against him this appeal is brought. What is his alleged case against Mrs Bennett? It is that by her unnecessary (and improper) withdrawal from the case after the execution of the second Deed, which was the direct result of the production of the Grunstein Letter, he was deprived of some greater chance of winning either the litigation adjudicated on by Dowsett J, or the appeal from that litigation, or both. It need hardly be wondered at that his Honour dismissed the proceedings summarily under the Supreme Court Rules Pt 13 r 5, or alternatively under the Court's inherent jurisdiction. 16 It is transparently clear that the previous rounds of litigation did not generate any issue estoppel in Mrs Bennett's favour. Mrs Bennett was not a party to any of the Federal Court litigation, and neither Westpac nor Australian Guarantee Corporation were parties to the litigation before Adams J. Nonetheless, what Mr Abriel wished to do was to relitigate before Adams J every single issue which had already been decided by Dowsett J. This was the plainest abuse of process. 17 There are two other observations which I think should be made in relation to this disturbing litigation. One is that Mr Abriel had endured the appalling experience of being incarcerated in Auschwitz during the war, and some of his close family were killed in that unspeakable place. He acquainted the Court with these facts whenever the whim took him. This is to be deplored, because those facts had no conceivable connection with any matter which the Court was required to consider. One can only conclude that Mr Abriel was trying to use those matters as a form of emotional blackmail. 18 A further, and equally unfortunate, aspect of the case was that Mr Abriel demonstrated, in the conduct of the appeal, striking inconsistencies in his submissions. On the other hand, he asserted that one consequence of Mrs Bennett's alleged desertion of his cause was that it left him alone and unprotected, with nobody caring to take up the cudgels on his behalf, and he having neither means nor friends to manage. On the other hand, in written submissions to this Court he stated: "I would have taken the matter to my wealthy Jewish friends who would have given the money to finance the trial. Solomon Lew, Frank Lowy, Harry Triguboff and scores of others have been my long-time friends going back over forty years. They were recently very supportive and felt for me. They would have reacted very angrily to Westpac's provocation which brought upon my family total ruin and claimed two lives."

Both assertions can hardly be true, and the fact that both were made hardly enhances Mr Abriel's credibility. 19 In my view, Adams J was correct, and for the reasons he gave. 20 The appeal should be dismissed with costs. 21 DAVIES AJA: I agree with Meagher JA.

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