(2015) 53 Fam LR 308(2015) 89 ALJR 750(2015) 323 ALR 1(2015) 254 IR 371[2015] HCA 28
Toronto (City) v C.U.P.E Local 79 [2003] 3 SCR 77[2003] SCJ No 64232 DLR (4th) 3859 Admin LR (4th) 1612003 SCC 63
UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77(2018) 92 ALJR 968(2018) 360 ALR 184
Judgment (16 paragraphs)
[1]
The application filed in the family law proceedings on 26 October 2022
The evidence concerning the application filed in the family law proceedings on 26 October 2022 is summarised at [100]-[104] and [143]-[148] above.
The plaintiffs' submissions that this application was a vexatious proceeding assume that the application was instituted and conducted by One T Development. The evidence referred to at [100] above does not prove that assumption on the balance of probabilities. Mr Zraika is not a defendant to the present proceedings. Nor is he a person with whom Mr Sebie is alleged to have acted in concert in relation to the commencement or conduct of any proceeding. It is therefore not necessary to consider this application further.
[2]
Sebie Federal Court proceedings
The evidence concerning the Sebie Federal Court proceedings is summarised at [105]-[111] above.
The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of the Sebie Federal Court proceedings.
I accept the plaintiffs' submission that the Sebie Federal Court proceedings were an abuse of process because the originating process sought:
1. substantially the same relief as that which had been claimed by Mr Jemmott, One T Developments, Enterprise INT, and Enterprise ICT - with Mr Sebie acting in concert with them - in the 7 August 2022 notice of motion and in the 14 August 2022 interlocutory process;
2. substantially the same relief as had been sought by Mr Jemmott, with Mr Sebie acting in concert with him, in the First Jemmott Federal Court proceedings; and
3. substantially the same relief as Mr Sebie had sought in his notice of motion filed on 31 August 2022 in the Trust proceedings.
The evidence adduced in the present proceedings does not disclose any material change in circumstances since 15 August 2022, including since 21 October 2022 when this Court had dismissed the transferred First Jemmott Federal Court proceedings as an abuse of process and had also dismissed Mr Sebie's 31 August 2022 motion in the Trust proceedings. Mr Sebie's use of this Court's procedures to propound substantially the same claims for a fifth time, only days after the third and fourth iterations of those claims had been dismissed, occasioned unjustifiable oppression to the plaintiffs in the present proceedings, who were unnecessarily required to expend time and incur costs in dealing with the claims for a fourth time. Mr Sebie's conduct brings the administration of justice into disrepute.
I also accept the plaintiffs' submission that the Sebie Federal Court proceedings were commenced without reasonable ground, at least in so far as Mr Sebie sought orders for the termination or stay of the winding up of ENA Development under s 482 of the Corporations Act. In the course of determining Mr Sebie's urgent application in the Sebie Federal Court proceedings on 9 January 2023, Goodman J found that Mr Sebie is neither a creditor nor a contributory of ENA Development and therefore lacks standing to apply for those orders under s 482. [127]
For those reasons, I find that the Sebie Federal Court proceedings were vexatious proceedings within the meaning of s 6 of the Vexatious Proceedings Act.
[3]
The stay motion in the Trust proceedings
The evidence concerning the stay motion is summarised at [112]-[128] above. The proceeding was a notice of motion filed by Mr Jemmott, Enterprise INT, and One T Development in the Trust proceedings on 22 December 2022. The stay motion was heard and determined by Ierace J and heard on 6 January 2023, save for the question of costs which his Honour determined at a later time.
On the basis of Mr Sebie's email sent to Goodman J on 5 January 2023 and extracted at [117] above, I find that Mr Sebie acted in concert with Mr Jemmott, Enterprise INT, and One T Development in the institution and conduct of that motion.
I accept the plaintiffs' submission that the stay motion was an abuse of process. As a matter of substance and reality, paragraph 5 of the notice of motion, and prayers 5 to 11 of the statement of claim referred to in paragraph 3 of the notice of motion, [128] relitigate:
1. the claims in prayers 7 and 9 of the 14 August 2022 interlocutory process instituted by Mr Jemmott, Enterprise INT, and One T Development and others in concert with Mr Sebie, and in respect of which Mr Jemmott, Enterprise INT, and One T Development gave the 15 August 2022 undertaking to this Court; [129]
2. the claim in prayer 6 of the originating process in the First Jemmott Federal Court proceedings instituted by Mr Jemmott in concert with Mr Sebie, which had been dismissed as an abuse of process on 21 October 2022 and which I have independently found was an abuse of process for the reasons explained above; [130] and
3. the claim in prayer 5 of the Sebie Federal Court proceedings, which I have found are an abuse of process for the reasons explained above, [131]
4. in circumstances where there had been no appeal from the order made in favour of the Liquidator for possession of the Homebush property on 21 October 2022. [132]
For those reasons, I find that the stay motion was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act. It is not necessary to address the various additional matters relied on by the plaintiffs as supporting that finding.
[4]
Mr Sebie's application in the Sebie Federal Court proceedings on 6 January 2023
The evidence concerning Mr Sebie's application made in the Sebie Federal Court proceedings on 6 January 2023, immediately after the dismissal of the stay motion in the Trust proceedings, is summarised at [117]-[119] above.
The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of that application.
The application sought an urgent review of Registrar Segal's dismissal of Mr Sebie's application under s 482 of the Corporations Act for a termination or stay of the winding up of ENA Development. The application was dismissed by Goodman J on 9 January 2023.
I find that the application was an abuse of process and was commenced without reasonable ground for the same reasons explained at [307]-[309] above in relation to the Sebie Federal Court proceedings. I therefore find that the application was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act.
[5]
January 2023 email communications
The evidence concerning Mr Jemmott's email communications with the chambers of the Common Law Duty Judge and Equity Duty Judge during January 2023 seeking to relist the stay motion is summarised at [125]-[128] above.
Contrary to the plaintiffs' submissions, these communications were not proceedings. [133] The question whether they were vexatious does not arise.
[6]
Second Jemmott Federal Court proceedings
The evidence concerning the Second Jemmott Federal Court proceedings is summarised at [128]-[134] above.
On the basis of the overall course of conduct referred to at [274] above, and of Mr Sebie's attempted interjection during the hearing of the proceedings before Markovic J on 8 February 2023 referred to at [133] above, I find that Mr Sebie acted in concert with Mr Jemmott in the institution and conduct of the Second Jemmott Federal Court proceedings. I reject Mr Sebie's submission that he was merely a witness in those proceedings.
In making the finding immediately above, I have paid no regard to the Liquidator's evidence concerning observations made by Mr Chase Berry at the hearings on 27 January, 2 February, and 8 February 2023. [134] As Mr Sebie submitted, Mr Chase Berry gave evidence in these proceedings which omitted any reference to the matters described by the Liquidator second hand and in very general terms. In the circumstances, that aspect of the Liquidator's evidence carries no weight.
The Second Jemmott Federal Court proceedings sought the same relief as Mr Sebie had sought in the Sebie Federal Court proceedings. [135] I find that the Second Jemmott Federal Court proceedings were an abuse of process and were commenced without reasonable grounds for the same reasons explained at [307]-[309] above in relation to the Sebie Federal Court proceedings. I note that Markovic J independently came to the same conclusion for the same reasons. [136]
[7]
The stay application in the 2022 appeal proceedings
The evidence concerning the application made by One T Development in the 2022 appeal proceedings on 17 February 2023 for a stay of orders made by Stevenson J in the Trust proceedings has been summarised at [140]-[141] above.
As the plaintiffs submitted, Mr Sebie appeared at the hearing of the application in the Court of Appeal rather than appearing in person at the hearing of the family law proceedings on 20 February 2023. [137] I infer from this that Mr Sebie regarded the application in the 2022 appeal proceedings as more important to him than the family law proceedings with his former wife. On that basis, I find that Mr Sebie acted in concert with One T Development in instituting and conducting the application.
In making the finding immediately above, I have paid no regard to the Liquidator's evidence concerning observations made by Mr Chase Berry at the hearing on 20 February 2023. [138] That aspect of the Liquidator's evidence carries no weight for the same reasons explained at [323] above in relation to similar evidence concerning an earlier hearing.
The reasons for judgment of Macfarlan JA refer to the unexplained delay in making the application. [139] The reasons for that delay stand in stark contrast to the urgency with which the applicant brought the application on for hearing one business day after it was filed. I accept the plaintiffs' submission that those matters give rise to an inference that the application was conducted in a way that harassed or caused unreasonable annoyance and detriment to the Liquidator, in that the unexpected filing and hearing of the application must necessarily have interfered with the Liquidator's orderly conduct of the hearing in the family law proceedings that commenced on the same day as the hearing of the application. On the basis of that inference, I find that the application was a vexatious proceeding within the meaning of s 6(d) of the Vexatious Proceedings Act.
[8]
VIII. Has each defendant frequently instituted or conducted vexatious proceedings in Australia?
[9]
Mr Sebie
I have found in Section VII above, Mr Sebie has instituted and conducted the following vexatious proceedings in Australia:
1. the notice of motion filed by Mr Sebie on 30 May 2022, as amended on 15 August 2022, seeking an order that the orders made by Sackar J in the Chiswick specific performance proceedings on 22 April 2022 be "stayed and set aside";
2. the notice of motion filed by Mr Sebie in the Trust proceedings on 31 August 2022 (as amended on 26 September 2022);
3. the Sebie Federal Court proceedings commenced on 26 October 2022; and
4. Mr Sebie's application made on an urgent basis in the Sebie Federal Court proceedings on 6 January 2023.
The second, third, and fourth proceedings referred to above were all instituted within a period of approximately four months and, as explained in Section VII above, sought substantially the same relief. I consider that this meets the "relatively low threshold" of "frequently" in s 8(1)(a) of the Vexatious Proceedings Act. [140]
In addition, I have found in Section VII above that Mr Sebie has acted in concert with the other defendants in instituting and conducting the following additional vexatious proceedings in Australia:
1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT;
2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others;
3. the First Jemmott Federal Court proceedings commenced on 19 August 2022;
4. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT, and One T Development, and which was heard on 6 January 2023; and
5. the Second Jemmott Federal Court proceedings commenced on 23 January 2023.
For the reasons explained below, each of those other defendants has frequently instituted or conducted vexatious proceedings in Australia.
I am therefore satisfied that Mr Sebie has frequently instituted or conducted vexatious proceedings in Australia, and has also instituted or conducted vexatious proceedings in Australia acting in concert with the other defendants (who themselves have instituted or conducted such proceedings frequently). The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Mr Sebie.
[10]
Mr Jemmott
I have found in Section VII above that Mr Jemmott has instituted and conducted the following vexatious proceedings in Australia:
1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT;
2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others;
3. the First Jemmott Federal Court proceedings commenced on 19 August 2022;
4. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT, and One T Development, and which was heard on 6 January 2023; and
5. the Second Jemmott Federal Court proceedings commenced on 23 January 2023.
The First Jemmott Federal Court proceedings and Second Jemmott Federal Court proceedings were commenced within a period of approximately five months. The Second Jemmott Federal Court proceeding was commenced only three months after the First Jemmott Federal Court proceeding was dismissed as an abuse of process. I consider that this meets the "relatively low threshold" of "frequently" in s 8(1)(a) of the Vexatious Proceedings Act in circumstances where, [141] as explained in Section VII above, the First and Second Jemmott Federal Court proceedings sought substantially the same relief, and that same relief had also been sought during the same five month period in separate Federal Court proceedings commenced by Mr Sebie, who acted in concert with Mr Jemmott in relation to Mr Jemmott's two Federal Court proceedings. [142]
I am therefore satisfied that Mr Jemmott has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Mr Jemmott.
[11]
One T Development
I have found in Section VII above that One T Development has instituted and conducted the following vexatious proceedings in Australia:
1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT and Enterprise ICT;
2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others;
3. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT and One T Development and heard on 6 January 2023; and
4. the notice of motion filed by One T Development on 17 February 2023 in the 2022 appeal proceedings seeking a stay of orders made by Stevenson J in the Trust proceedings on 11 July 2022.
These three proceedings were commenced within a period of approximately six months. I have found in Section VII above that Mr Sebie acted in concert with One T Development in relation to the institution and conduct of those proceedings. Each of those proceedings formed part of the course of conduct referred to at [274] above, which included the relitigation of previous claims in the stay motion, as referred to at [313] above. In those circumstances, I consider that One T Development's institution of the three vexatious proceedings referred to above during the period from 7 August 2022 to 17 February 2023 meets the "relatively low threshold" of "frequently" in s 8(1)(a) of the Vexatious Proceedings Act.
I am therefore satisfied that One T Development has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to One T Development.
[12]
Enterprise ICT
I have found in Section VII above that Enterprise ICT has instituted and conducted the following vexatious proceedings in Australia:
1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT and Enterprise ICT; and
2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others.
In my opinion, the commencement of those two proceedings, each without reasonable ground, within one week of one another and in the context of the overall course of conduct referred to at [274] and [313] above, meets the "relatively low threshold" of "frequently" in s 8(1)(a) of the Vexatious Proceedings Act.
I am therefore satisfied that Enterprise ICT has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Enterprise ICT.
[13]
Enterprise INT
I have found in Section VII above that Enterprise INT has instituted and conducted the following vexatious proceedings in Australia:
1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT and Enterprise ICT;
2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others; and
3. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT, and One T Development, and which was heard on 6 January 2023.
My observations and findings above in relation to Enterprise ICT apply equally to Enterprise INT, and all the more so given its role in the stay motion.
I am therefore satisfied that Enterprise INT has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Enterprise INT.
[14]
IX. Should vexatious proceedings orders be made in respect of any or all of the defendants?
A vexatious proceedings order restricting the defendants' access to the courts is a very serious matter, and is not to be made lightly. However, I consider that each of the defendants, by their role in the repetitious suits that I have found to be vexatious proceedings, has harassed and caused unreasonable detriment to the plaintiffs and has burdened publicly funded court resources in a manner that calls for the plaintiffs and the courts to be protected from the continuation of that conduct.
I do not accept Mr Sebie's submission that there will be no further repetitive suits because all outstanding matters relating to the winding up of ENA Development were included in the hearings before the Federal Circuit and Family Court of Australia in February 2023. There is every likelihood Mr Sebie and some or all of the other defendants will commence further proceedings if the Federal Circuit and Family Court of Australia determines any of those matters adversely to them. The history set out in Section II of these reasons demonstrates that the dismissal of the defendants' claims in one proceeding has not constrained them from commencing fresh proceedings making the same claims.
The manner in which Mr Sebie defended the present proceedings gives me no cause to believe that this risk has diminished over time. Mr Sebie displayed no insight into his past conduct, and demonstrated his propensity to ignore decisions that he does not like and his firm belief that he is entitled to run claims that he believes are meritorious, irrespective of whether a court has already dismissed those claims. Mr Sebie's conduct demonstrates his refusal to accept that the question whether a claim or application has merit is to be determined objectively by the court hearing that claim or application, on the basis of the evidence adduced at that hearing. Mr Sebie's subjective views, however strongly held, do not do not entitle him to start over again on each occasion that a court determines a claim in a manner that is unfavourable to him. [143]
I am therefore satisfied that it is appropriate to exercise the discretion to make the order sought by the plaintiffs pursuant to s 8(7)(b) of the Vexatious Proceedings Act that the defendants (by themselves, or by their servants or agents) be prohibited from instituting any proceedings in New South Wales, or filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person against:
1. the Liquidator;
2. ENA Development;
3. any current or former director, employee, agent, or consultant of the Liquidator's firm, BRI Ferrier; and
4. any current or former director, employee, agent, or consultant of the plaintiffs' solicitors in these proceedings, ERA Legal,
relating to or in any way connected with the winding up of ENA Development, without first obtaining leave of this Court.
That order makes it clear that it applies to the institution of proceedings in New South Wales by the defendants, including whether they institute proceedings in the name of another person or entity. I do not consider that it is necessary or appropriate to make the plaintiffs' proposed notation to the effect that a defendant is to be taken to do something in the name of another person or entity in specified circumstances. Whether proceedings commenced in the name of another are, in truth, proceedings instituted by one or more of the defendants, is a question of fact that should be determined on a case by case basis if and when such cases arise.
In circumstances where the summons for leave to appeal has been filed by Mr Sebie, Mr Jemmott and One T Development in the 2023 appeal proceedings but is yet to be heard, and the plaintiffs do not seek an order staying the 2023 appeal proceedings, I consider that there should be an exception to the order referred to above for any notice of appeal filed in the 2023 appeal proceedings by the applicants for leave to appeal strictly in accordance with any order of the Court of Appeal granting leave to appeal.
In my opinion, the protective purpose of the power in s 8 of the Vexatious Proceedings Act would not be served by an order staying the Real Property List proceedings in the absence of any evidence about those proceedings and without any finding having been made that those proceedings are vexatious. [144] Mr Sebie's submission to that effect has force, for the reasons explained at [247] above. I decline to make the order sought by the plaintiffs staying the Real Property List proceedings.
The plaintiffs' application for a "blanket" stay of any proceedings commenced after 27 April 2023 is refused for the reasons already explained at [246]-[248] above.
Mr Sebie's application in prayer 2 of his notice of motion filed on 26 April 2023 for an order staying the present proceedings as an abuse of process is dismissed for the reasons explained in Section V above. As explained in Section III above, Mr Sebie was not permitted to move on the other prayers in that notice of motion during the course of the hearing. That motion will be formally disposed of by an order dismissing it.
[15]
X. Orders
For all of the foregoing reasons, the orders of the Court are:
1. Order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) that the defendants (by themselves, or by their servants or agents) are prohibited from instituting any proceedings in New South Wales, including by filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person, against:
1. Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (ACN 105 235 363) (in liq) (the Liquidator);
2. ENA Development Pty Ltd (ACN 105 235 363) (in liq);
3. any current or former director, employee, agent, or consultant of the Liquidator's firm, BRI Ferrier; and
4. any current or former director, employee, agent, or consultant of the plaintiffs' solicitors in these proceedings, ERA Legal,
relating to or in any way connected with the winding up of ENA Development Pty Ltd (ACN 105 235 363) (in liq), without first obtaining leave of this Court, save that this order does not prohibit the first, second and third defendants, as the applicants for leave to appeal in Court of Appeal proceedings 2023/115895, from filing a notice of appeal in those proceedings strictly in accordance with the terms of any grant of leave to appeal that may be made by the Court of Appeal in those proceedings.
1. Order that the plaintiffs' claims for relief in the Amended Originating Process are otherwise dismissed, save for the claim for costs which is reserved for further consideration.
2. Order that the first defendant's notice of motion filed on 26 April 2023 is dismissed, reserving the question of costs.
I will hear the parties in relation to costs.
[16]
Endnotes
Prayers 5, 5A, 6 and 7 of the Amended Originating Process filed in court on 27 April 2023. In closing submissions on 28 April 2023, the plaintiffs abandoned any reliance on the inherent jurisdiction of the Court as an alternative basis for the relief sought.
Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 at [21]-[29].
Ibid.
Ibid at [32], [39]-[45].
Ibid at [31]-[33].
Ibid at [16]ff and [34].
Ibid at [35].
Ibid at [12]; [35].
Ibid at [56]-[58].
Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185.
See [15] above.
In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919 at [22]-[24].
Ibid at [21].
Ibid at [56].
Ibid at [53]-[83].
Ibid at [48]-[51].
Ibid at [89], referring to Sebie v Pham (No 3) [2021] NSWCA 277 at [19] (Bell P and Basten JA, Brereton JA dissenting).
Ibid at [90]-[91].
Ibid at [123]-[124].
The same email address that Mr Sebie stipulated in his notice of appearance filed in the present proceedings on 24 April 2023.
See [55]-[59] above.
See [57] above.
See [58]-[59] above.
See [23] above.
See [23] above
See [23]-[35] above.
See [23]-[35] above.
See [36]-[37] above and [74]-[75] below.
In the matter of ENA Development Pty Ltd [2022] NSWSC 54 at [2], [14], and [16].
See [105] below.
Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134 at [34]
Ibid at [38]-[45].
See [44]-[47] above.
Andy Vuong Duc Pham v Enterprise ICT Pty Limited (Supreme Court of New South Wales, 30 May 2022, unrep).
Ibid.
In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478.
Ibid at [9], citing Metcash Ltd v Jardim (No 2) [2010] NSWSC 1042 at [7]; In the matter of Raejoe Pty Limited (receiver and manager appointed) (administrators appointed) as trustee for "The Coe Family Trust" [2012] NSWSC 1457 at [5]-[9]; In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703 at [28].
Ibid at [9]-[10].
Ibid at [13].
Ibid at [14].
Ibid at [16].
Ibid at [18].
See [55]-[58] above.
[2022] NSWSC 1478 at [14]-[15].
Ibid at [15].
Ibid at [16]-17].
Ibid at [18]-[19].
Ibid at [20].
Ibid at [21].
Ibid at [22].
Ibid at [32]-[44].
See [60]-[72] above.
[2022] NSWSC 1478 at [45]-[46].
This application was sometimes referred to in the plaintiffs' as having been filed on 25 October 2022. The copy of the application included in exhibit BJON-1 to Mr O'Neill's affidavit affirmed on 21 April 2023 bears a filing date of 26 October 2022.
See [55]-[58] above.
See [60]-[73] and [96] above.
See [49]-[59] above.
See [60] above.
I note that the stay motion was filed in this Court as an application in the Trust proceedings, notwithstanding that the Trust proceedings had been transferred to the Federal Circuit and Family Court of Australia on 21 October 2022 as referred to at [97] above.
Ronald Jemmott v ENA Development Pty Ltd (in liquidation) (Supreme Court of New South Wales, 6 January 2023, unrep).
In the matter of ENA Development Pty Ltd (in liq) (Costs) [2023] NSWSC 162 at [11].
Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2 at [11]-[18].
Ibid at [19]-[22].
See [112]-[116]
See [117]-[119] above; Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2 at [11]-[18].
See [112] above.
In the matter of ENA Development Pty Ltd (in liquidation) (Costs) [2023] NSWSC 162 at [3]-[4].
See [105]-[111] above.
Mr Sebie's interjection is recorded at page 26 of that transcript.
Ronald Jemmott v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liquidation) (Federal Court of Australia, 8 February 2023, unrep).
See [59] above.
See [39]-[47] above.
One T Development Pty Ltd v Peter Krejci (Court of Appeal (NSW), 20 February 2023, unrep).
See [140]-[141] above.
See [139]-[141] above.
See [93] above.
See [161]-[169] above.
See [167] and [171] above.
See Annexure A to these reasons.
Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [16].
Civil Procedure Act 2005 (NSW), s 64.
Civil Procedure Act 2005 (NSW), ss 56, 58.
See Annexure B to these reasons.
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [13]-[15] (Simpson AJA, McColl and Macfarlan JJA agreeing) (Zepinic).
Ibid at [17]-[19] and the authorities there referred to.
[2015] NSWCA 44 at [14], cited with approval and applied in Quach v New South Wales Health Care Complaints Commission [2017] NSWCA 267 at [109] (Gleeson JA, Simpson JA and Sackville AJA agreeing)
[2015] NSWCA 44 at [14], cited with approval in Mohareb v Palmer (No 2) [2020] NSWCA 324 at [98] (Simpson AJA, McCallum JA agreeing).
CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202; [2021] NSWCA 316 at [26]-[32] (Bell P) and the authorities there cited, including Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 323 ALR 1; (2015) 254 IR 371; [2015] HCA 28 at [26] and Toronto (City) v C.U.P.E Local 79 [2003] 3 SCR 77; [2003] SCJ No 64; 232 DLR (4th) 385; 9 Admin LR (4th) 161; 2003 SCC 63 at [47].
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [55] (Teoh).
Ibid at [50]-[54].
(2015) 89 NSWLR 284; (2015) 53 Fam LR 308; [2015] NSWCA 129 at [115]-118] (Leeming JA, Basten and Meagher JJA agreeing) (Potier); see also Zepinic at [16] (Simpson AJA, McColl and Macfarlan JJA agreeing).
[2014] NSWCA 125 at [56].
[2009] FCA 398, as cited later in, inter alia, Attorney General v Tareq Altaranesi [2013] NSWSC 63 at [16]; Bathis-Brown v Woods [2015] NSWSC 1194 at [18] (Bathis-Brown); O'Neill v Kwon [2016] NSWSC 1706 at [41] (Kwon).
Per prayer 2 of Mr Sebie's notice of motion filed on 26 April 2023: see [191] above.
At [120].
Andy Vuong Duc Pham v Enterprise ICT Pty Limited (Supreme Court of New South Wales, 30 May 2022, unrep).
Above at [79].
See [81]-[92] above.
See [54]-[58] above.
See [60] above.
See [105]-[107] above.
See [112] above.
See [117] above.
See [129]-[130] above.
Evidence Act 1995 (NSW), s 91.
See [50] above.
See [51] above.
In the matter of Spartan Pastoral Company Pty Ltd (in liquidation) [2020] NSWSC 1218 at [25]-[31].
Zepinic at [109] and [124].
Civil Procedure Act 2005 (NSW), s 91.
See [50] above.
See [54] above.
See [65]-[68] above.
See [71] above.
See [62] above.
See [72]-[73] above.
See [73] above; In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478.
See [274] above.
In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [13].
See [84] above; In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [9]-[10].
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6].
In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [22].
Zepinic at [120].
See [280] above.
Teoh at [55]; Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6]; see also Kwon at [41]; Bathis-Brown at [18].
See [118] above; Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2 at [19]-[22].
See [112]-[114] above.
See [55]-[56] above.
See [60]-[62], [73] and [289]-[294] above.
See [106]-[107] and [305]-[310] above.
See [93] above.
Zepinic at [109].
See [131]-[133] above.
See [129]-[130] above.
See [134] above; Ronald Jemmott v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liquidation) (Federal Court of Australia, 8 February 2023, unrep).
See [146] above.
See [140] above.
See [141] above; One T Development Pty Ltd v Peter Krejci (Court of Appeal (NSW), 20 February 2023, unrep) at [3]-[4].
See above at [242], and the excerpt there from Potier at [115]-[118] (Leeming JA, Basten and Meagher JJA agreeing).
Ibid.
Above at [331].
Particularly his conduct referred to at [209] and [230] above.
See [136] above.
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: 15 May 2023
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 323 ALR 1; (2015) 254 IR 371; [2015] HCA 28
Toronto (City) v C.U.P.E Local 79 [2003] 3 SCR 77; [2003] SCJ No 64; 232 DLR (4th) 385; 9 Admin LR (4th) 161; 2003 SCC 63
UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77; (2018) 92 ALJR 968; (2018) 360 ALR 184; [2018] HCA 45
Viavattene v Attorney-General (NSW) [2015] NSWCA 44
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Texts Cited: N/A
Category: Principal judgment
Parties: Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) (First Plaintiff)
ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) (Second Plaintiff)
Robert Sebie (First Defendant)
Ronald Jemmott (Second Defendant)
One T Development Pty Ltd (ACN 632 081 853) (Third Defendant)
Enterprise ICT Pty Ltd (ACN 169 428 988) (Fourth Defendant)
Enterprise INT Pty Ltd (ACN 604 743 740) (Fifth Defendant)
Representation: Counsel:
Mr M L Rose (Plaintiffs)
Mr Sebie's notice of motion in the Trust proceedings
On 31 August 2022, Mr Sebie filed a notice of motion in the Trust proceedings, which was subsequently amended on 26 September 2022.
The amended notice of motion sought the following relief:
1. in prayer 1, an order joining Mr Sebie to the Trust proceedings as the third defendant;
2. in prayer 2, an order that the Homebush property "be stayed or placed on paused" (sic) until the Chiswick specific performance proceedings were finalised;
3. in prayer 3, an order setting aside orders made in the Trust proceedings insofar as they affected the Homebush property;
4. in prayers 4 and 5, declarations that the Homebush property "is a trust asset" and that Mr Robert Sebie and Mr Richard Sebie were the beneficial owners of that property;
5. in prayers 6 and 7, an order requiring the Liquidator to return all items taken from the Homebush property, and that the Liquidator and his solicitors be restrained from keeping copies of those items; and
6. in prayer 8, a declaration that the Liquidator had a conflict of interest in performing his duties as liquidator of ENA Development.
That application was listed for hearing before Black J on 21 October 2022. Mr Sebie, who represented himself at that hearing, did not press for the relief in prayers 2, 4, and 5 referred to above, but did press the balance of the claims for relief. Black J made orders on that day dismissing the motion and requiring Mr Sebie to pay the Liquidator's costs forthwith, in an amount to be agreed or assessed. His Honour gave reasons ex tempore, which were later published. [36]
In relation to Mr Sebie's claim in prayer 1 of the amended notice of motion for an order joining him as a party to the Trust proceedings, Black J observed (with reference to authority) that a person ought to be joined as a party to proceedings if their legal rights are directly affected by the orders sought, but not otherwise. [37] His Honour then stated: [38]
"[9] … Mr Sebie appears to rely upon his occupancy of the Homebush Property to assert that his joinder is necessary to the proceedings. It does not seem to me that that supports his joinder to the proceedings, or has the consequence that he is either a necessary or proper party to the proceedings, where no legal basis on which he is entitled to occupation is identified.
[10] Mr Sebie has been, and will be, afforded procedural fairness to the extent that he has been heard in the proceedings under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW). ..."
Black J observed that prayer 3 of the amended notice of motion did not identify the specific orders that Mr Sebie sought to set aside. His Honour described the manner in which Mr Sebie had presented his case for the order sought in prayer 3: [39]
"[15] … Mr Sebie also drew attention, in submissions, to a number of documents which relate to this matter. I bear in mind that these documents were largely tendered in a manner that isolated them from their context and were also unsupported by evidence to establish their authenticity or the circumstances in which they were prepared. It is not apparent that those documents would, individually or as a whole, establish what Mr Sebie would need to establish, had he sought more specific relief addressed to the particular orders that have been made in the proceedings. If Mr Sebie seeks to terminate the winding up, and if he has standing to bring such an application, it would need to made under s 482 of the Act and be supported by evidence of ENA's cash flow solvency in the usual way."
Black J then identified the following orders that emerged from Mr Sebie's submissions as the orders that he sought to set aside:
1. the orders winding up ENA Development; [40]
2. the order appointing the Liquidator as receiver of the assets of the Trust; [41] and
3. the judicial advice given to the Liquidator that he would be justified in treating the Homebush property as beneficially owned by ENA Development. [42]
In relation to the substance of Mr Sebie's application to set aside the winding up order, Black J noted that a similar application had previously been made and abandoned by other persons associated with ENA, on the basis that ENA had a substantial asset to its name, being the Homebush property. [43] His Honour recorded Mr Sebie's submission that the Homebush property could readily be realised to repay the petitioning creditor who had sought and obtained the winding up order in January 2022. Black J rejected Mr Sebie's application because any application by Mr Sebie to terminate the winding up of ENA Development would need to be made under s 482 of the Corporations Act (if indeed Mr Sebie had standing to make such an application) and would need to be supported by evidence of ENA's cash flow solvency. [44] His Honour stated: [45]
"… the fact that ENA has, whether as trustee or as absolute owner, a substantial property does not have the consequence it is solvent, because solvency depends on the application of a cash flow test. The proposition that ENA is solvent is hardly self-evident where, over a long period, it has in fact failed to repay the moneys due to Mr Pham, the creditor who sought and obtained its winding up."
In relation to Mr Sebie's application to set aside the appointment of the Liquidator as receiver of the assets of the Trust, Black J said: [46]
"[16] … The principles on which such an appointment is made are well-established: see, for example, Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FCR 17; (2014) 103 ACSR 401; [2014] NSWSC 1484; Re Glenvine Pty Ltd (in liq) [2020] NSWSC 866; Re Double Bay Property Management Pty Ltd (in liq) [2020] NSWSC 203; Re Peak Invest Pty Ltd (admins apptd) [2021] NSWSC 1714 at [19]ff. Here, Mr Sebie concedes all of the matters which supported that appointment, namely that ENA was and is the registered owner of the Homebush Property; that ENA was at least formerly the trustee of the ENA Trust, although Mr Sebie contends that One T is now its trustee; that, as former trustee of the trust, ENA has a right of indemnity against the trust assets (including the Homebush Property, if, contrary to Stevenson J's later direction, it was trust property) for liabilities which it had properly incurred as trustee; and that there are now many cases in this Court, other State Courts and the Federal Court of Australia where liquidators of former trustees have been appointed as receivers of trust property, to support the exercise of that right of indemnity. The appointment of Mr Krejci as receiver of the assets of the ENA Trusts reflected an orthodox application of those principles.
[17] It seems to me that the position is, at best for Mr Sebie's application, that ENA was the former trustee of the ENA Trust, and, at worst for that application, that it is absolute owner of the property consistent with the advice given by Stevenson J. Neither position would support an order setting aside the appointment of Mr Krejci as receiver of the assets of the ENA Trust including the Homebush Property (if it was trust property) in the relevant circumstances. The fact that One T is now purportedly or actually the trustee of the ENA Trust, a matter on which Mr Sebie places great emphasis, does not assist him, because an order appointing a liquidator as receiver of trust assets in this way is ordinarily made in circumstances where a new trustee has been appointed or purportedly appointed to a trust. That is a reason to make the order, rather than a reason to set it aside. I would not make the second order that may be sought by Mr Sebie in this application."
In relation to Mr Sebie's application to set aside the judicial advice given by Stevenson J - that the Liquidator would be justified in treating the Homebush property as beneficially owned by ENA Development - Black J said: [47]
"[18] … Mr Sebie points to documents which, he says, might have led to a different conclusion (I interpolate, if they were authentic, which was not established here; and were given particular weight and isolated their context) to the conclusions that Stevenson J had reached, in a contested hearing in which One T participated as a contradictor, as set out in his Honour's detailed judgment. Recognising that Mr Sebie takes a different view from that which Stevenson J had taken, it seems to me that nothing to which Mr Sebie has drawn attention has the consequence that Stevenson J's judgment should be set aside, even if I have power to do so.
[19] I should add to my oral judgment that Mr Sebie's reference to suggested money flows from Mr Richard Sebie and Mrs Rose Sebie to the ENA Trust may have been intended to support a claim for a resulting or constructive trust, although he did not develop that point in submissions. That proposition does not assist Mr Sebie, because there is no evidence that the alleged 'money flows' were of a nature that could establish a constructive or resulting trust, rather than a debt, still less that Mr Sebie is the beneficiary of or has standing to enforce such a trust in respect of any monies paid by Mrs Rose Sebie or Mr Richard Sebie."
Black J continued, as regards Mr Sebie's claim in prayer 3 of the amended notice of motion: [48]
"[20] There is a further and wider difficulty with the application for this order. Mr Sebie does not identify any basis on which the Court has power to, or should, set aside the relevant orders. No doubt, the Court has power in some circumstances to set aside orders under UCPR r 36.16, but these are orders made, and entered, long ago and it is not apparent that any relevant jurisdiction to set aside them exists under that rule. A judge sitting at first instance in this Court does not exercise an unlimited jurisdiction to set aside, at will, orders that either he or she or other judges have made at earlier points in time, and such a course would be inconsistent with the public interest in the finality of litigation. For these reasons, this order should not be made."
Black J dismissed Mr Sebie's application in prayers 6 and 7 of the amended notice of motion for an order requiring the Liquidator to return all items taken from the Homebush property in the execution of a search warrant authorised by this Court, and that the Liquidator and his solicitors be restrained from keeping copies of those items, because Mr Sebie had not adduced any evidence to establish that the search warrant had not been properly executed. [49]
In relation to Mr Sebie's application in prayer 8 of the amended notice of motion for a declaration that the Liquidator has a conflict of interest in performing his duties as liquidator of ENA Development, Black J stated: [50]
"[22] … I have referred to the contest in the evidence as to that matter, with Mr Sebie referring to the fact that Mr Krejci had lived in the same street as members of the Sebie family, and Mr Krejci denying that such a conflict exists. Mr Stack responds to this matter in some length, referring to Mr Krejci's affidavit evidence, and submitting that there is no admissible evidence that would support the existence of a conflict or any lack of independence affecting Mr Krejci. I consider it preferable in the circumstances not to determine that question, where the Insolvency Practice Schedule (Corporations) establishes a mechanism for the removal of the liquidator which Mr Sebie has not invoked. The Court should not make a declaration of the kind sought by Mr Sebie, where that declaration would have no consequence, since it does not seek Mr Krejci's removal as liquidator, and Mr Krejci's removal would not follow from making it. I should add that those observations, and the fact that I have not determined this issue, should not be taken as suggesting that the claims in respect of Mr Krejci have any merit. It might be thought that the proposition that a liquidator has lived in the same street or the same suburb as a person or family associated with an entity to which he is appointed as liquidator would generally be a very weak basis upon which to make a serious allegation of this character."
In the same reasons for judgment, Black J addressed the Liquidator's application for an order for possession of the Homebush property, made by interlocutory process filed in the Trust proceedings on 12 September 2022. That interlocutory process had been amended on 19 October 2022 to seek an additional order under s 74MA of the Real Property Act 1900 (NSW) for the withdrawal of a caveat that Mr Sebie had lodged on the title to the Homebush property on or about 14 October 2022. Black J made an order on 21 October 2022 for possession in favour of the Liquidator and granted leave to the Liquidator to issue a writ of possession to enforce that order. [51]
The Liquidator's application under s 74MA of the Real Property Act was stood over to be heard on 24 October 2022. Mr Sebie represented himself at that hearing before Black J, which lasted for approximately three hours. Mr Sebie's caveat claimed an interest in the Homebush property under a constructive trust on the basis that he claimed to have contributed to the purchase price of the property in 2013. Mr Sebie also claimed an interest under a lease dated 1 November 2019. At the conclusion of the hearing, his Honour made the order sought by the Liquidator under s 74MA requiring Mr Sebie to withdraw the caveat and a further order empowering the Registrar in Equity to act in place of Mr Sebie if he failed to comply with the order and to do all things necessary to ensure that the caveat be withdrawn.
On 11 November 2022, the Court issued a writ of possession for the Homebush property on the application of the Liquidator. On the same day, One T Development lodged a caveat on the title to the Homebush property claiming "an equitable interest in the land pursuant to a transfer signed on 03/02/2022".
Application for an urgent stay of the winding up of ENA Development in the Sebie Federal Court proceedings
At approximately 5:00pm on 5 January 2023, Mr Sebie sent a lengthy email to Goodman J of the Federal Court of Australia requesting an urgent hearing of the application for a stay and/or review of the orders made on 16 November 2022 dismissing Mr Sebie's application for an order terminating the winding up of ENA Development, referred to at [105]-[111] above. Mr Sebie's email relevantly stated (emphasis added; errors in original):
"… We have an urgent matter that we seek to be heard preferable on the week commencing 16 January 2023. These are dates provided by a barrister who said he will appear for us.
The urgency is that several business and personal which occupy the property of Lot 36, 146-152 Parramatta Road, and Homebush NSW 2140 'the Homebush property'. This property is sub divided. The liquidator has applied for a writ of possession which will take placed at 9am on 9 January 2023. The matter is in front of a duty judge in the Supreme Court of NSW tomorrow to try to stay possession order. If we provided an earlier return date in the Federal Court, we might be able to persuade the Supreme Court of NSW provide a temporary stay of the possession of the Homebush property until our matter is heard in this court. Secondly if the stay of the possession is not granted we will seek to appear in your court room tomorrow afternoon, to press our filed application.
…
I apologise the way I am approaching this court. I sympathetic ask if we can be put on this matter standby for a possible listing at 2.10pm 6 January 2023. This is pending what happens in the Supreme Court tomorrow morning."
After Ierace J had delivered judgment on the afternoon of 6 January 2023 dismissing the stay motion, Mr Sebie instigated an urgent hearing before Goodman J of his application for an order under s 482 of the Corporations Act staying the winding up of ENA Development pending Mr Sebie's application for review of Registrar Segal's order made on 16 November 2022 refusing to terminate the winding up of that company. That urgent hearing occurred during the late afternoon and evening of 6 January 2023, with further written submissions being provided by both Mr Sebie and by the respondents to the application over the weekend of 7 and 8 January 2023. Goodman J delivered judgment on 9 January 2023 dismissing Mr Sebie's application on the basis that he was neither a creditor nor a contributory of ENA Development, and therefore lacked standing to make the application under s 482. [62] His Honour continued (emphasis in original): [63]
"19 In any event, I would not have exercised the discretion so as to grant the application, for the following reasons which, in the circumstances, may be briefly stated.
20 I am not satisfied, on the evidence before me, that the plaintiff has even reasonable prospects of succeeding in his application for the Court, upon review of the decision of Registrar Segal, to make an order staying or terminating the winding up, in view of the matters that inform the exercise of the discretion under s 482 of the Act: see In the matter of Sails Corp Pty Ltd [2021] NSWSC 1241 at [19] and the authorities there cited.
21 Further, there are significant discretionary reasons weighing against the grant of the relief sought by the plaintiff. First, Black J made an order for possession on 21 October 2022 for the liquidator to have possession of the Homebush property. Thus, the prejudice that the plaintiff asserts would flow from the execution of the writ of possession is a matter that has been known by the plaintiff since that date. Yet, there is no adequate explanation as to why the application before Ierace J or the present application were not brought earlier.
22 Secondly, it is clear that this application is in substance a second attempt to obtain a stay of the writ of possession, albeit by a different means. It followed immediately upon the dismissal of the application brought before Ierace J and the plaintiff explained that the urgency of the application to this Court was the imminent execution of the writ of possession. Several important matters are unexplained: (1) whether a stay of the winding up was sought before the Supreme Court of New South Wales as part of the application to stay the writs, and if this was not done, why it was not done; and (2) why the plaintiff did not seek from the Court of Appeal of the Supreme Court of New South Wales leave to appeal the decision of Ierace J and interim relief. The bringing of a second proceeding in a different court on what is in substance the same subject matter should be discouraged, particularly given the risk of inconsistent findings and the deployment of public resources involved: see Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134 at [44] (Halley J)."
His Honour ordered Mr Sebie to pay the respondents' costs of the application.
IV. Applicable legislation and legal principles
Section 7 of the Vexatious Proceedings Act expressly preserves any inherent jurisdiction or powers of the Court to restrict vexatious proceedings. However, the plaintiffs expressly abandoned any reliance on the Court's inherent jurisdiction during their closing submissions on 28 April 2023. My consideration of the legislation and principles applicable to the plaintiffs' claims is therefore confined to the Vexatious Proceedings Act and the well-established principles concerning the construction and operation of that Act.
Section 8 of the Vexatious Proceedings Act relevantly provides:
"8 Making of vexatious proceedings order
(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
(2) For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and
(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:
(a) the Attorney General,
(b) the Solicitor General,
(c) the appropriate registrar for the court,
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,
(e) a person who, in the opinion of the court, has a sufficient interest in the matter.
(5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court.
…
(7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person."
Section 4 of the Act defines "proceedings" as including any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, and "any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way".
Section 6 of the Act defines "vexatious proceedings" as including:
"6 Meaning of 'vexatious proceedings'
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings."
As will be seen below, the plaintiffs in these proceedings are persons against whom the allegedly vexatious proceedings have been commenced by one or more of the defendants. The plaintiffs therefore have standing to apply for the vexatious proceedings orders sought in these proceedings under s 8(4) of the Act.
The Court must undertake the following four-step process in determining whether to make a vexatious proceedings order against the defendants: [84]
1. identify each of the proceedings which is alleged to be a vexatious proceeding;
2. determine which, if any, of those proceedings is vexatious within the meaning of s 6 of the Act;
3. determine whether each defendant has "frequently" instituted or conducted vexatious proceedings in Australia, or has instituted or conducted vexatious proceedings in Australia acting in concert with another person who has frequently instituted such proceedings or who is subject to a vexatious proceedings order; and
4. assuming that the third step is answered in the affirmative, determine whether or not to exercise the discretion to make a vexatious proceedings order in relation to each defendant.
Once each allegedly vexatious proceeding as been identified in the first step, the second step requires the Court to consider each such proceeding individually and to determine whether it satisfies the statutory definition of "vexatious proceedings" set out at [234] above. [85] As Basten JA observed in Viavattene v Attorney-General (NSW), the definition is not expressed to be exclusive, but it would be "rare for a court to treat proceedings as vexatious proceedings unless they could fairly be characterised as falling under one of the descriptions in s 6". [86] His Honour also emphasised that those descriptions are not be construed as "independent and self-contained categories". Indeed, most proceedings that could be described in the terms of paragraphs (b) to (d) of s 6 would constitute an abuse of process for the purpose of paragraph (a). [87]
As Kiefel CJ, Bell and Keane JJ stated in UBS AG v Tyne as Trustee of the Argot Trust: [88]
"1 … The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. [Citations omitted.]
…
45 The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in [Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27] and [Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28] and the enactment of s 37M of the [Federal Court of Australia Act 1976 (Cth)] to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the 'just, quick and efficient' resolution of litigation. … Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it."
The making of a claim, or raising of an issue, which was made or raised and determined in an earlier proceeding may constitute an abuse of process where the second proceeding is prosecuted by a different plaintiff than the first proceeding. The courts have recognised that the designation of the plaintiff to the second proceeding may mask the reality of the situation. The question is whether the second plaintiff's conduct in instituting the second proceeding is so unreasonable, or the continuation of the second proceeding would be so unjustifiably oppressive to the defendant, as to bring the administration of justice into disrepute. [89]
Proceedings can be an abuse of the process of a court or tribunal irrespective of whether the person instituting or conducting them intends to abuse that court or tribunal's process. [90]
In undertaking the second step under the Vexatious Proceedings Act, the Court must form its own judgment about each allegedly vexatious proceeding. In doing so, it may take into account the findings and views expressed by the judicial officers who resolved each of those proceedings. A finding in the earlier proceedings that they were an abuse of process or that they were instituted without reasonable grounds is not, of itself, determinative for the purpose of the plaintiffs' application under the Vexatious Proceedings Act. However, very persuasive material will ordinarily be required to depart from any such finding made in the earlier proceedings, since the court that heard and decided those proceedings will have been best placed to determine whether they were an abuse or were instituted without reasonable grounds. [91]
The question raised by the third step is whether each defendant has "frequently" instituted or conducted vexatious proceedings in Australia, or has instituted or conducted vexatious proceedings in Australia acting in concert with one or more of the other defendants who has frequently instituted such proceedings. In this context, "frequently" is "a relatively low threshold" for the reasons explained by Leeming JA in Potier v Attorney General in and for the State of New South Wales: [92]
"[115] First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of 'habitually and persistently' was deliberate, and plainly lowered the threshold condition.
[116] Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
[117] I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of 'frequently'. This illustrates the fact that '[t]he issue posed by the statutory term "frequently" is not to be assessed merely by an arithmetic calculation': Viavattene at [49].
[118] Each of those considerations favours 'frequently' being a relatively low threshold."
If the Court is satisfied after undertaking the first three steps referred to above that it has power to make a vexatious proceedings order against the defendant, then the fourth step calls for an exercise of the discretion whether to make an order and, if so, on what terms. The considerations relevant to the exercise of that discretion are unconfined, but relevant factors include the serious consequences of such an order for the defendant and the protective purpose which the order serves. As the Court of Appeal said in Teoh v Hunters Hill Council (No 8) (citations omitted): [93]
" … an order restricting a person's access to the courts is a very serious matter and thus an order under the [Vexatious Proceedings Act] is not to be made lightly. The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the court itself from the expense, burden and inconvenience of baseless and repetitious suits".
In determining whether a vexatious proceedings order will serve the purpose of the statutory power, it is relevant to consider whether the defendant displays insight into their conduct in earlier proceedings that have been found to be vexatious within the meaning of the Vexatious Proceedings Act. As Perram J said in Official Trustee v Bankruptcy v Gargan (No 2): [94]
"12 … Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."
Section 8(7) of the Vexatious Proceedings Act, which has been extracted at [232] above, confers on this Court wide power to make orders against a defendant, including staying proceedings already instituted in New South Wales, prohibiting the defendant from instituting proceedings in New South Wales, or any other order that the Court considers appropriate in relation to the defendant.
As referred to in the introduction to these reasons at paragraphs [6]-[7], the orders sought by the plaintiffs in the present case include an order staying any proceeding commenced by or on behalf of any one or more of the defendants on or after 27 April 2023 relating to or in any way connected with the winding up of ENA Development. In the circumstances of the present case, an order in such terms would apply to proceedings that had already been commenced at the time of the order, but which were not the subject of evidence adduced by the plaintiffs in support of their application under the Vexatious Proceedings Act and which were therefore not the subject of any determination by the Court in these proceedings that they were vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
Contrary to the plaintiffs' submissions, the making of an such an order would be erroneous for at least two reasons. First, it would contravene s 8(3) of the Vexatious Proceedings Act because the defendants would have no opportunity of being heard in relation to whether those proceedings were vexatious such that they ought to be stayed. Second, it would be contrary to the protective purpose for which the power is conferred to make an order staying proceedings that were commenced prior to the making of the order, without determining that those proceedings are vexatious.
In the cases cited by the plaintiffs in support of their contention that the Court has power to order a "blanket" stay of proceedings, the proceedings that would be covered by the "blanket" stay had been identified and considered during the hearing of the application under the Vexatious Proceedings Act and the court had had an opportunity to exclude particular proceedings from the operation of that stay, where appropriate. That is not so in the present case, and the plaintiffs' formulation of the proposed "blanket" stay in terms that would apply only to proceedings relating to or connected with the winding up of ENA Development does not ameliorate the two fundamental problems identified immediately above.